# Petition — Maier v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 460 U.S. 1070

## Text

Office-Supreme Court, U.S.
FiLhLED

82-1361

FEB 5 1983
No.
4d dicts TS
CLERK
IN THE
Supreme Court of the Anited States
OCTOBER 1982 TERM
JON CARY MAIER,

Petitioner,
Vs .

THE UNITED STATES OF AMERICA,
Respondent.

PETITION FOR WRIT OF CERTIORARI ON APPEAL
FROM THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT
JAMES ROSENBAUM MARC G. KURZMAN
United States Attorney KURZMAN, SHAPIRO, MANAHAN
234 U.S. Courthouse & PARTRIDGE
110 South Fourth Street 601 Butler Square
Minneapolis, MN 55401 100 North Sixth Street
DANIEL SCHERMER Minneapolis, MN 55403-1579
Assistant U.S. Attorney (612) 333-4403
234 U.S. Courthouse SCOTT HARRIS
110 South Fourth Street KURZMAN, SHAPIRO, MANAHAN
Minneapolis, MN 55401 & PARTRIDGE
Attorneys for Respondent Attorneys for Petitioner
SOLICITOR GENERAL
Department of Justice

Washington, D.C. 20530

1983—Northwest Brief Printing Co., 3010 2nd St. No., Minneapolis 55411—588-7506

II.

III.

QUESTIONS PRESENTED FOR REVIEW

Whether the Court of Appeals violated
the "clearly erroneous" standard of
Fed.R.Civ.P. 52(a) when, based only
on direct testimony and contrary to
evidence adduced via cross examina-
tion, it overturned the _ factual
finding by the Magistrate and the
District Court that Defendant's truck
was not impounded pursuant to stand-
ard Minneapolis Police procedures.

Whether a post impoundment inventory
search of a vehicle which did not
comport with the standard impoundment
procedures of the local police is
violative of the Fourth Amendment.

Whether a full, nmonconsensual, war-
rantless search of an _ illegally
parked camper-truck is justified when
there is present an unlicensed re-
sponsible adult who can arrange for
removal of the camper-truck or its
contents, or who can_- otherwise
relieve police of liability for
property claims.

TABLE OF CONTENTS

Page
Es ccc cae ceesecescecccces ii
Questions Presented For Review ..............05: iv

Reports Of Opinions Delivered In The Courts Below... v
| eee Vv
Relevant Constitutional Provisions And Regulations ._ v
PE Scr UGhGecesesevcsrecccoscces 1
Argument

I. The Court of Appeals violated the clearly erron-
eous standard of Fed. R. Civ. P. 52(a) when,
based only on direct testimony and contrary to
evidence adduced via cross examination, it over-
turned the finding by the magistrate and district
court that the Minneapolis police impoundment
procedures were not followed in the instant case. 8

II. Under South Dakota v. Opperman, 428 U.S. 364
(1976), the police violated defendant’s constitu-
tional rights by conducting an inventory search
of his vehicle which did not comport with the
standard Minneapolis police impoundment pro-
TEE CR DUS NaGacesecccccccccecce 16

III. In light of the particular facts and circumstances
of the case, a full, nonconsensual, warrantless
search after impound of the camper-truck was un-

reasonable in scope and unconstitutional. ..... 20
TT CCTE LGU ese baedecssceccccccccecs 27
APPENDIX INDEX

Opinion of the Eighth Circuit Court of Appeals revers-
ing the Order of the District Court ........,.... A-1

Memorandum Order of the District Court granting De-
fendant’s Motion to Suppress Evidence .......... B-1

Report and Recommendation of Magistrate ........ C-]

i

TABLE OF AUTHORITIES
Cases:

Booker v. Special School Dist. No. 1, Minneapolis,
Minn., 585 F.2d 347, cert. denied 443 U.S. 915

ke eee eer 11
Boscarino v. Nelson, 518 F.2d 879 (7th Cir. 1975) 10
Cady v. Dombrowski, 413 U.S. 433 (1973) ....... 14, 18
Cardwell v. Lewis, 417 U.S. 583 (1974) .......... 22
Dombrowski v. Cady, 471 F.2d 280 (7th Cir. 1972),

pert GES DE; Be CASED bec backbevenncvinaws 14

Ferrero v. United States, 603 F.2d 510 (Sth Cir. 1979) 12

Graver Tank & Mfg. Co. v. Linde Air Products Co.,
336 U.S. 271 (1949), rev’d in part on other grounds,
S5e UR, GOS CRS 6 vce deccsaecvcccevnaces 10

International Travel Arrangers, Inc. v. Western Air-
lines, Inc., 623 F.2d 1255 (8th Cir.), cert. denied,

GHD UB. TORE CAPM dc cies cervens testncssses 11
Jackson v. U.S. Steel Corp., 624 F.2d 436 (3rd Cir.
PTE TEC ORE Tre eer eT Tere rr Cree 12
Jacobs v. City of New Orleans, 484 F.2d 24 (Sth Cir.
oo eee eee Pee er Cer re ret Ty tere hae 10
Jones v. United States, 362 U.S. 257 (1960) ........ 27
Kansas City Stockyards Co. of Maine v. Anderson,
ISP Fae Oe Ce Ce Fe 6 000 6e obo vavne vane 11
Layne-Minnesota p.r., Inc. v. Singer Co., 574 F.2d 429
Ce Ga CPE edad cede vaccvseeesea neues 11, 15

Norm Thompson Outfitters, Inc. v. General Motors
Corp., 448 F.2d 1293 (9th Cir. 1971) ....12, 14, 15
Pickens-Bond Constr. Co. v. United Broth. of Carpen-
ters and Joiners of America, Local 690, 586 F.2d
ee Le Re errr ree 11
Pullman-Standard v. Swint, 102 S.Ct. 1781 (1982) .. 10
Rakas v. Illinois, 439 U.S. 128 (1978) ............ 27
Sam Miller Bag Co. v. Burlington Northern, Inc., 641
a ee Lee EE 6c ho bb haces san ices cans 11
Southern Arizona York Refrigeration Co. v. Bush Mfg.
‘Co., 361 F.2d 336 (9th Cir. 1966) ............. 11
South Dakota v. Opperman, 428 U.S. 364 (1976) ...
PPO ee Ae 8, 9, 16, 17, 18, 20, 21, 22, 24, 25

State v. Hudson, 390 A.2d 509 (Me. 1978) ...... 18-19
State v. Jewell, 338 So.2d 633 (La. 1976) ....... 18, 20
Terry v. Ohio, 392 U.S. 1 (1968) ..........ee 00% 21
United Barge Co. v. Notre Dame Fleeting & Towing
Service, Inc., 568 F.2d 599 (8th Cir. 1978) ....11, 15
United States v. Chadwick, 433 U.S. 1 (1977) ......
oP GAR SoA este ener er era 20, 22, 23, 24
United States v. Dochterman, 603 F.2d 652 (8th Cir.
SCS cc ce nak eA ke Kae eae ke 10
United States v. Edwards, 577 F.2d 883 (Sth Cir.)
(en banc) cert. denied, 439 U.S. 968 (1978) ...... 21
United States v. Hellman, 556 F.2d 442 (9th Cir.
EOS peer Peres ree 18, 19
United States v. Hughes, 635 F.2d 449 (Sth Cir. 1981) 10
United States v. Jackson, 529 F.Supp. 1047 (D. Md.

| EE REAP Poeare a Bt i Pa a 18
United States v. Johnson, 570 F.2d 836 (8th Cir.

__, SRA er er ere err rrr rrr roe 10
United States v. Maier, 691 F.2d 421 (8th Cir. 1982)

PN ET EE OTe Tee Te ee Tree 7, 9, 19, 22

United States v. Munz, 352 F.2d 196 (9th Cir. 1965) 15
United States v. Wilson, 636 F.2d 1161 (8th Cir.

a rer re Tt rere Ve Bos. ahs, Bes am ar
United States v. Yellow Cab Company, 338 U.S. 338
BES ee re ee ern rer 11
Washington v. Watkins, 566 F.2d 1346 (Sth Cir.
1981) cert. denied, 102 §.Ct. 2021 (1982) ....... 10
Zenith Radio Corp. v. Hazeltine Research, Inc., 395
have bs babi eabeueee eves s 12, 15
Secondary Authorities:
i eT OE vcs Ce ee encnontoese es v, 20
a EE OEE bee io ease peenarivesseses 5
EE hn oa 64.6 oh 9 p00 0 605.6.5 6 0 20 5
ae USA. Geetton CIGD) (1) oo ecccccecccccvns 7, 14
Be Bee PE EAST oo cc 6g pee ceceeepeccuseses v
ME I vc a cncacpeneeobpene< iv, v, 8, 9
PE PSTN 4000 cti ee habsass eens 15

II LaFave, Search and Seizure: A Treatise on the
Fourth Amendment, Section. 7. 2 PP. 540-41 (1978
Se TPR TTECT TATE TOSI ELE EEE eTe 23

I,

II.

III.

QUESTIONS PRESENTED FOR REVIEW

Whether the Court of Appeals violated the “clear-
ly erroneous” standard of Fed.R.Civ.P. 52(a) when,
based only on direct testimony and contrary to evi-
dence adduced via cross examination, it overturned
the factual finding by the Magistrate and the District
Court that Defendant’s truck was not impounded
pursuant to standard Minneapolis Police procedures.

Whether a post impoundment inventory search of a
vehicle which did not comport with the standard im-
poundment procedures of the local police is violative
of the Fourth Amendment.

Whether a full, nonconsensual, warrantless search
of an illegally parked camper-truck is justified when
there is present an unlicensed responsible adult who
can arrange for removal of the camper-truck or its

contents, or who can otherwise relieve police of liabil-
ity for proverty claims.

iv

REPORTS OF OPINIONS DELIVERED IN THE COURTS
BELOW

The opinion of the United States Court of Appeals for
the Eighth Circuit is reported at 691 F.2d 421 (8th Cir.
1982) and is attached hereto as Appendix 1. The Order of

the United States District Court, District of Minnesota,
3-81CR.83, is unreported, but attached hereto as Appen-
dix 2. The Report and Recommendation of the United
States Magistrate is attached hereto as Appendix 3.

JURISDICTIONAL STATEMENT

On October 27, 1982, the United States Court of Appeals
for the Eighth Circuit filed its opinion in the instant case
reversing the District Court’s Order suppressing evidence.
On December 7, 1982, the United States Court of Appeals
for the Eighth Circuit entered its Order denying Defen-
dant’s Petition for Rehearing. 28 U.S.C. Section 1254 con-
fers on this Court jurisdiction to review the decision of the
Court of Appeals by Writ of Certiorari.

RELEVANT CONSTITUTIONAL PROVISIONS AND REG-
ULATIONS

(1) U.S. CONST. Amend. IV:

The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
search and seizures, shall not be violated, and no
Warrants shall issue, but on probable cause, sup-
ported by Oath or affirmation, and particularly de-
scribing the place to be searched and the persons or
things to be seized.

(2) Fed.R.Civ.P. 52(a):

v

Findings by the Court:

(a) Effect. In all actions tried upon the facts
without a jury or with an advisory jury, the court
shall find the facts specially and state separately its
conclusions of law thereon, and judgment shall be en-
tered pursuant to Rule 58; and in granting or refus-
ing interlocutory injunctions the court shall similarly
set forth the findings of fact and conclusions of Jaw
which constitute the grounds of its action. Requests
for findings are not necessary for purposes of review.
Findings of fact shall not be set aside unless clearly
erroneous, and due regard shall be given to the op-
portunity of the trial court to judge the credibility of
the witnesses, The findings of a master, to the extent
that the court adopts them, shall be considered as
the findings of the court. If an opinion or memoran-
dum of decision is filed, it will be sufficient if the
findings of fact and conclusions of law appear there-
in. Findings of fact and conclusions of law are un-
necessary on decisions of motions under Rules 12 or
56 or any other motion except as provided in Rule
41(b).

IN THE

Supreme Court of the Anited States
No.
OCTOBER 1982 TERM

JON CARY MAIER,
Petitioner,
vs.
THE UNITED STATES OF AMERICA,
Respondent.

PETITION FOR WRIT OF CERTIORARI ON APPEAL
FROM THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

STATEMENT OF THE CASE

On September 10, 1981, at approximately 2:00 a.m.,
Minneapolis police officers Myron Rognlie and Michael
Carey received a call to check a “slumper,” or party sleeping
in a vehicle parked at 330 East 46th Street, Minneapolis,
Minnesota (T./* 5-6). When they arrived the officers found
a pickup truck parked with its right-hand front and rear
wheels on the sidewalk (T. 6). The box of this pickup was
covered by a “topper,” or shell camper, so that the rear
portion of the truck was fully enclosed (T. 11). This en-
tire rear portion was divided into two separate, locked com-

“T” refers to transcript of hearing of pretrial motions held before
Magistrate Brian P. Short on October 26, 1981.

2

partments. The normal tail section of the pickup was
covered by a large sheet of plywood, approximately 4 feet
by 8 feet in dimension (T. 13, 15). This piece of plywood
rendered the normal tail section of the truck an enclosed,
concealed box twelve to eighteen inches in height (T. 33).
In order to gain access to this concealed compartment,
it was necessary to unlock the tailgate and pull it down
(T. 14). Secondly, the fiberglass “shell camper” attached
on top of the tail section created an upper compartment
which reached in height to the top of the cab (T. 11).
This camper top had a window at the back (T. 29) and
could be opened by unlocking and flipping up its hinged
back section (T. 13-14). The large sheet of plywood
board served as the floor of this upper locked compartment
(T. 14).

When the officers approached the truck they found the
Petitioner, Mr. Maier, asleep in the driver’s seat (T. 6).
The officers woke Mr. Maier, and in response to their
questions he identified himself and gave his address and
date of birth (T. 6). Officer Carey ran a driver’s license
check and a warrant check (T. 6). He discovered that Mr.
Maier was clear of any warrants but that his driver’s license
was under suspension (T. 7). The officers also determined
that the truck was not stolen (T. 26, Magistrate’s Findings
of Fact No. 6).

The officers instructed Mr. Maier to get out of the cab
of the truck, and told him that because his license was
under suspension they were not going to let him drive the
vehicle away (T. 7). They did not afford Mr. Maier the
opportunity to make arrangements to have the vehicle re-
moved by calling a licensed driver who could remove it
from its illegally parked location (T. 32). Officer Rognlie

3

frisked Mr. Maier for weapons, found none, and instructed
him to leave the scene (T. 7, 19; Magistrate’s Finding
No. 7). The officers took the keys for the truck, gave Mr.
Maier his remaining keys, and sent him on his way (T.
7). Throughout this incident, Mr. Maier made no
threatening remarks or jestures toward the officers (T. 19),
and the officers never saw any movement in the vehicle
which would have suggested the presence of someone else
(T. 34). While the officers could have ticketed the truck
and left it where it was, (T. 22-23), they decided instead
to search the vehicle (T. 8). The officers never issued a
citation on the truck for illegal parking (T. 22).

After Mr. Maier began walking away from the scene,
the officers commenced their search (T. 8). Mr. Maier
had not consented to this procedure, and the officers did
not afford him the option of relieving the police depart-
ment from liability for claims (T. 31-32). Officer Rogn-
lie entered and searched the unlocked cab compart-
ment of the vehicle. He saw nothing in plain view which
appeared to be contraband (T. 30). He did discover in the
cab a leather pouch, and he yelled down the street to Mr.
Maier, “Is this your purse?” (T. 21) Mr. Maier called back
that he had no “purse” (T. 21). Officer Rognlie then
found a second pouch which contained large amounts of
currency (T. 9). After finding this money, he ran after Mr.
Maier and found him down the street (T. 9). Again, Mr.
Maier denied ownership of any “purse” (T. 21), and stated
that he had been using the truck for the previous five
months, but that it belonged to a friend (T. 10). Officer
Rognlie ordered Mr. Maier to accompany him back to the
truck, and the two men walked back to the scene (T. 10).

Officer Rognlie immediately placed Mr. Maier in the

4

rear of the squad car and returned to his partner (T. 11).
Meanwhile. Officer Carey had already moved to the rear of
the truck. Looking through the window of the camper top,
he saw only some sleeping bags and what appeared to be
a rake and a cyclone fence (T. 29). Nonetheless, without
consent, exigent circumstances or a search warrant, Officer
Carey unlocked and opened the camper top compartment
with a key he had found on the front seat of the truck (Af-
fidavit in Support of Search Warrant; T. 11).

Upon opening the camper top, Officer Carey asked Of-
ficer Rognlie to “come over here” (T. 11). Officer Rognlie
did so, and later testified that he detected the smell of
what he believed was marijuana coming from the rear of
the vehicle (T. 12). However, Officer Rognlie admitted in
his testimony that he has never served on the Minneapolis
Narcotics Squad and has no training in narcotics (T. 27-
28), and he could not describe the smell of unburned mar-
ijuana or articulate why the smell he noticed in the truck
was that of unburned marijuana (T. 28; Magistrate’s Find-
ing No. 19). After the warrantless search of the camper
top portion of the truck, the officers unlocked the
truck’s tailgate so as to gain access to the concealed com-
partment below the sheet of plywood (T. 12-13; Magis-
trate’s Finding No. 19; Affidavit in Support of Application
for Search Warrant). Under the sheet of plywood, the of-
ficers found several sealed, opaque, plastic bags, one of
which Officer Rognlie squeezed (T. 13, 15). The officers
then returned to their squad car, advised Mr. Maier that he
was under arrest for “probable cause, narcotics,” and called
for a narcotics investigator (Magistrate’s Finding No. 20).

When Sgt. John J. Boulger, a Minneapolis Narcotics
Officer, arrived, Officers Rognlie and Carey explained to

him what they had found and how they had come upon
it (T. 41; Magistrate’s Finding No. 21). Sgt. Boulger pre-
pared an affidavit in support of an application for a
search warrant based solely on the information received
from Officers Rognlie and Carey (T. 42; Magistrate’s Find-
ing No. 22). The search warrant was issued by Hennepin
County Municipal Court Judge Kenneth Gill, and a
search pursuant to this warrant revealed a quantity of sus-
pected marijuana in the plastic bags within the camper
compartment of the vehicle. (T. 39; Magistrate’s Finding
No. 24). On the same day, Mr. Maier was charged by
complaint with possession with intent to distribute mari-
juana in violation of 21 U.S.C, Section 841. Federal juris-
diction in the United States District Court for the District
of Minnesota was based on 18 U.S.C. Section 3231 and
Fed.R.Crim.P. 18.

On October 28, 1981, the Defendant brought on for
hearing before Magistrate Brian Short a motion to suppress
all evidence obtained as a result of the search and seizure
of the vehicle. During the hearing on this motion, Officer
Rognlie claimed for the first time that the rear portion of
the truck had been searched out of a concern for his per-
sonal safety. (T. 11). In the report which he prepared the
night of the incident, Officer Rognlie made no mention of
this alleged concern for police protection (T. 18), and he
made no supplementary report which spoke of police safe-
ty as grounds for searching the rear of the vehicle (T. 34).
Because the space under the plywood sheet was only twelve
to eighteen inches in height, nothing unusual had been ob-
served during the course of the search, the defendant was
not carrying any weapons, and the truck was not stolen.
the Magistrate concluded that Officer Rognlie’s alleged fear

6

for his safety was not reasonable (Magistrate’s Report,
page 5).

Officer Rognlie also claimed at the hearing that the
search was an inventory search after impoundment con-
ducted in accordance with normal police procedure (T.
8), and that the truck was impounded because it was
parked on the sidewalk (T. 22). This claim was contradicted
by the police report, which set forth that the rationale for
impounding was the finding of the alleged marijuana (T.
23). Further, Officer Rognlie’s cross examination revealed
that, contrary to police regulations: the impound report
was not completed (T. 21) and/or filed (T. 22); no citation
was issued for the illegal parking which formed the alleged
basis for the impound (T. 22-23); he had no knowledge of
the standards for impounding a vehicle (T. 24) or the
standards for not impounding a vehicle (T. 25); the police
inventory form regarding the contents of the vehicle had not
been completed (T. 26-27); Minneapolis Police Form 6007,
otherwise known as a tow-sheet, was not completed prior
to the impounding of the vehicle (T. 44); the vehicle iden-
tification number was not checked through the Police Au-
to Unit prior to impounding (T. 26, 44); and Mr. Maier
was not afforded the opportunity to provide for the prompt
removal of the vehicle before the officers commenced
searching it (T. 32, 41).

After hearing the testimony of Officer Rognlie and Sgt.
Boulger, the Magistrate concluded that the established Min-
neapolis Police Department procedures for impoundment
of a vehicle had not been followed in the instant case
(Magistrate’s Finding No. 9), and recommended that
the trial court grant Defendant’s motion for an rder sup-
pressing certain physical evidence, including all uf the al-

7

leged marijuana found by the police (See Appendix 3,
Magistrate’s Report and Recommendation.) The Govern-
ment objected to the Magistrate’s findings that standard
procedures had not been followed, that Officer Rognlie’s
alleged fear for police safety was unreasonable, and that
the officers’ belief that they detected the smell of unburned
marijuana was unreasonable, (Government’s Memoran-
dum of Objections to the Magistrate’s Report and Recom-
mendations).

The district court conducted a de novo review pursuant
to 28 U.S.C. Section 636(b) (1) and embraced all but one
of the Magistrate’s findings. Specifically, the court con-
cluded that established procedures for impoundment of
a vehicle had not been followed and that Officer Rognlie’s
alleged fear for his safety was not reasonable (see Appen-
dix 2). The Court accepted the Magistrate’s recommen-
dation to suppress the physical evidence seized pursuant to
the search of the vehicle. District Court Judge Alsop found
no facts in the instant case to adequately distinguish it
from United States v. Wilson, 636 F.2d 1161 (8th Cir.
1980), in which the Eighth Circuit Court of Appeals held
that “[t]he routine search of a locked automobile trunk is
unreasonable under the Fourth Amendment.” 636 F.2d
at 1165. (See Appendix 2, p. 2.)

On appeal, the United States Court of Appeals for the
Eight Circuit reversed and remanded, United States v.
Maier, 691 F.2d 421 (8th Cir. 1982), concluding that the
facts in the instant case were quite different from those
presented in Wilson. Id. at 423. Moreover, in the court
of appeals’ view, “the record demonstrates that the initia-
tion of the search into the vehicle was in conformity with
the usual practice for inventory searches of a vehicle to be

8

impounded,” Id. at 424-25 n. 2, so that the warrantless
search was justified under South Dakota v. Opperman,
428 U.S. 364 (1967). It is from this decision of the court
of appeals that the instant petition arises.

ARGUMENT
1.

THE COURT OF APPEALS VIOLATED THE CLEARLY ER-
RONEOUS STANDARD OF FED. R. CIV. P. 52(a)
WHEN, BASED ONLY ON DIRECT TESTIMONY AND
CONTRARY TO EVIDENCE ADDUCED VIA CROSS
EXAMINATION, IT OVERTURNED THE FINDING BY
THE MAGISTRATE AND DISTRICT COURT THAT THE
MINNEAPOLIS POLICE IMPOUNDMENT PROCED-
URES WERE NOT FOLLOWED IN THE INSTANT CASE.

In recommending the suppression of the physical evi-
dence seized pursuant to the search of the truck driven by
Mr. Maier, Magistrate Brian Short made a factual finding
that the established Minneapolis Police Department proce-
dures for impoundment of a vehicle had not been fol-
lowed. Magistrate’s Finding No. 9. After de novo review,
the district court adopted this finding. See Appendix 2.
In reversing the decision of the district court, the United
States Court of Appeals for the Eighth Circuit “disagreed”
with this factual finding:

Although Maier argues that the police did not comply
with requirements of the Minneapolis ordinances for
an inventory search, and the magistrate made find-
ings consistent with Maier’s contention, we disagree
with that conclusion. . . . [T]he record demonstrates
that the initiation of the search into the vehicle was

9

in conformity with the usual practice for inventory
searches of a vehicle to be impounded.

United States v. Maier, 691 F.2d 421, 424-25 n. 2 (8th
Cir. 1982) (emphasis added). Interpreting South Dakota
v. Opperman, 428 U.S. 364 (1976), the Eighth Circuit
correctly concluded that “once a vehicle is seized and le-
gitimately taken into police custody, the routine practice
of securing and inventorying its contents is justified ... .”
691 F.2d at 423 (emphasis added). By setting aside the
finding of the Magistrate and district court that standard
impoundment procedures had not been followed, the
court of appeals was able to reconcile the search of the
vehicle in the instant case with its reading of Opperman.
The Eighth Circuit concluded that “we are satisfied
from our examination of the record that the police en-
tered the locked camper while conducting an appropriate
inventory search,” 691 F.2d at 423 n. 1 (emphasis added),
and supported this conclusion by including in its opinion
a lengthy quotation from the direct testimony of Officer
Rognlie. Id. at 424-25 n. 2.

A court of appeals is not empowered to overturn factual
findings simply because it “disagrees” with the trial court,
or because it is “satisfied” from its own examination of the
record that there is evidence supporting a conclusion con-
trary to that reached by the trial court.

According to Rule 52(a) of the Federal Rules:

Findings of fact [by a federal district court] shall not
be set aside unless clearly erroneous, and due re-

-. gard shall be given to the opportunity of ‘the trial
court to judge of the credibility of the witnesses. The
findings of a master, to the extent that the court adopts
them, shall be considered as the findings of the court.
Fed.R.Civ.P. 52(a).

10

Rule 52(a) has been extended to measure appellate review
applicable to a trial judge’s factual determination in a
criminal case, United States v. Hughes, 635 F.2d 449, 453
(Sth Cir. 1981); Washington v. Watkins, 655 F.2d 1346,
1353 (5th Cir. 1981) cert. denied 102 S.Ct. 2021 (1982);
United States v. Dochterman, 630 F.2d 652, 653 (8th Cir.
1980); United States v. Johnson, 570 F.2d 836, 838 (8th
Cir. 1978). This rule does not make exceptions or purport
to exclude certain categories of factual findings from the ob-
ligation of a court of appeals to accept a district court’s
findings unless clearly erroneous. Pullman-Standard v.
Swint, 102 S.Ct. 1781 (1982). Nor does the rule divide
facts into categories. Jd. A trial court’s findings with respect
to police officers’ conduct and adherence to regulations are
factual findings to which the “clearly erroneous” standard
applies for purposes of review. See, Boscarino v. Nelson,
518 F.2d 879 (7th Cir. 1975); Jacobs v. City of New Or-
leans, 484 F.2d 24 (Sth Cir. 1973).

As this Court long ago established, the dictates of Rule
52(a) that findings of fact not be set aside unless clearly
erroneous and that due regard be given to the opportun-
ity of the trial court to judge of the credibility of witnesses,
require that the appellate court make allowances for the
advantages possessed by the trial court in appraising the
significance of conflicting testimony. Graver Tank &
Mfg. Co. v. Linde Air Products Co., 336 U.S. 271 (1949),
rev'd in part on other grounds, 339 U.S. 605 (1950).
Where there is evidence which would support either of two
conflicting conclusions, but the trial court has decided to
weigh evidence more heavily for defendants, such a choice
between two permissible views of the weight of the evi-

11

dence is not “clearly erroneous.” United States v. Yellow
Cab Company, 338 U.S. 338 (1949); Pickens-Bond Const.
Co. v. United Broth. of Carpenters and Joiners of America,
Local 690, 586 F.2d 1234 (8th Cir. 1978); accord,
Booker v. Special School Dist. No. 1, Minneapolis, Minn.,
585 F.2d 347, cert. denied 443 U.S. 915 (8th Cir. 1978);
Sam Miller Bag Co. v. Burlington Northern, Inc., 641
F.2d 607 (8th Cir. 1981). This principle reflects an ap-
pellate court’s obligation to construe the evidence in a light
nost favorable to the appellee in determining whether the
district court’s findings were clearly erroneous. United
Barge Co, v. Notre Dame Fleeting & Towing Service, Inc.,
568 F.2d 599 (8th Cir. 1978); accord, Kansas City Stock-
yards Co. of Maine v. Anderson, 199 F.2d 91 (8th Cir.
1952); Southern Arizona York Refrigeration Co. v. Bush
Mfg. Co., 361 F.2d 336 (9th Cir. 1966).

The Court of Appeals for the Eighth Circuit itself has
noted that a court of appeals must accept the factual find-
ings of a trial court unless these findings are clearly erron-
eous, based upon a review of the entire record. Layne-
Minnesota p.r., Inc. v. Singer Co., 574 F.2d 429 (8th Cir.
1978). Nevertheless, without even citing the conflicting
“substantial evidence” within the forty-eight page record
on which the Magistrate and district court had relied, the
Eighth Circuit overturned their mutual finding that the
officers had not followed established Minneapolis Police
Department impoundment procedures. The Eight Circuit
did not assert that the finding was clearly erroneous, or
that the court was left with the definite and firm convic-
tion that a mistake had been committed by the trial court.
See, e.g., International Travel Arrangers, Inc. v. Western
Airlines, Inc., 623 F.2d 1255 (8th Cir.), cert. denied 449

12

U.S. 1063 (1980); Jackson v, U.S. Steel Corp., 624 F.2d
436 (3rd Cir. 1980); Ferrero v. United States, 603 F.2d
510 (5th Cir. 1979). Rather, the Eighth Circuit simply
“disagreed” with the trial court’s conclusion, 691 F.2d
at 424 n. 2.

It is not a function of a court of appeals to decide fac-
tual issues de novo. Zenith Radio Corp. v. Hazeltine Re-
search, Inc., 395 U.S. 100, 123 (1969). In Norm Thomp-
son Outfitters, Inc. v. General Motors Corp., 448 F.2d
1293 (9th Cir. 1971), the Ninth Circuit noted

the severe limitations imposed on an appellate court
in reviewing findings of fact... . It is not our func-
tion to reevaluate the evidence below . . . . Our task,
rather, is to determine if there exists evidence of sub-
stance to support the findings of fact of the trial
court....

Id. at 1294-95 (emphasis added). In the instant case, the
forty-eight page record of the hearing before Magistrate
Short is replete with evidence which supports the finding
by the Magistrate and district court. While the Eighth Cir-
cuit pretended that Officer Rognlie’s testimony established
that normal police procedure had been followed in im-
pounding the truck, on cross examination he admitted he
did not know what the police standards were for deter-
mining when to impound a vehicle (T. 24) or when not
to impound (T. 25), or even what procedures should be
followed before ordering an impound (T. 25).

Had Officer Ronglie been familiar with the Minneapolis
Police Department Manual’s standards for impounding and
not impounding vehicles, he would have known that the
vehicle driven by Mr. Maier should not have been im-
pounded. See the 6-800 Series of the Manual which ad-

13

dresses impound procedures and was introduced as
Government’s Exhibit 1.

As the record and the Magistrate’s Findings of Fact
reflect, the officers were informed that Mr. Maier had
been using his friend’s truck for the previous five months
(T. 10), Mr. Maier was clear of any warrants (T. 7), and
the truck was not stolen (T. 26, Magistrate’s Finding No.
6). Under the circumstances, proper police procedures dic-
tated that Mr. Maier be afforded an opportunity to ar-
range for the prompt removal of the truck from its im-
properly parked location. Further, under United States v.
Wilson, 636 F.2d 1161 (8th Cir. 1980), the police should
have at Jeast inquired whether Mr. Maier would relieve
them of liability for claims, thus obviating the need for a
search even /f the vehicle was seized. Id. at 1165.

Officer Rognlie’s cross examination also revealed that,
contrary to the dictates of the Minneapolis Police Depart-
ment Manual, the vehicle identification number was not
checked through the Police Auto Unit prior to impound-
ing (Government’s Exhibit 1, section 6-803); Minneapolis
Police Form 6007, otherwise known as a tow-sheet, was
not completed prior to the impounding of the vehicle
(Id.); the police inventory form (Form 6008) regarding the
contents of the vehicle was never completed (Government’s
Exhibit 1. section 6-811); and an impound report had not
been completed and/or filed as required (Government's
Exhibit 1, section 6-806). Moreover, while Officer Rognlie
claimed at one point that the truck was impounded be-
cause it was parked on the sidewalk (T, 22), he later ad-
mitted that the rationale for impounding which the officers
set forth in the police report was the finding of the alleged
marijuana (T. 23). He also admitted that no citation ever
wes issued for illegal parking (T. 22-23).

14

Having had the opportunity to examine the relevant por-
tion of the Minneapolis Police Department Manual and
to hear the witnesses and judge their credibility, the Magis-
trate found that the established Minneapolis Police De-
partment procedures for impoundment of a vehicle were
not followed. Magistrate’s Finding No. 9. The Govern-
ment objected to this finding, but the district court, after
its de novo review pursuant to 28 U.S.C. Section 636(b)
(1), embraced the Magistrate’s determination. While it is
beyond question that “there exists evidence of substance
to support the findings of fact of the trial court,” Norm
Thompson Outfitters, Inc. v. General Motors Corp., 448
F.2d at 1294-95, the Eighth Circuit apparently ignored
this evidence.

In Cady v. Dombrowski, 413 U.S. 433 (1973), as in the
case at bar, the Court of Appeals for the Seventh Circuit
simply overturned factual findings of a district court with-
out any showing that said findings were clearly erron-
eous. Dombrowski v. Cady, 471 F.2d 280, 283 (7th Cir.
1972), rev’d, 413 U.S. 433 (1973). As this Court stated in
reversing the Seventh Circuit’s decision:

While that Court [of Appeals] was obligated to exer-
cise its independent judgment on the underlying con-
stitutional issue presented by the facts of this case, it
was not free on this record to disregard these findings
of fact. . . . We believe that the Court of Appeals
should have accepted, as did the state courts and the
District Court, the findings with respect to Officer
Weiss’ specific motivation and the fact that the pro-
cedure he followed was “standard.”

413 US. at 443.

The Eighth Circuit Court of Appeals should not be free
simply to disregard the district court’s findings of fact.

15

When, as in the instant case, there is evidence of substance
to support a particular finding, the court of appeals is
obligated to accept it. Norm Thompson Outfitters, supra.
“If, on the other hand, such finding of fact is ‘clearly er-
roneous,’ it is the duty of this court [of appeals] to so de-
clare.” United States v. Munz, 352 F.2d 196, 198 (9th
Cir. 1965) (emphasis added). In the instant case, as in
Cady, the court of appeals failed to do either.

It is apparent that the Eighth Circuit abused its author-
ity in reviewing the district court’s decision by failing to
review the entire record before it, Layne-Minnesota p.r.,
Inc. v. Singer Company, 574 F.2d 429 (8th Cir, 1978), by
failing to construe the evidence within the record in the
light most favorable to the appellee, United Barge Com-
pany v. Notre Dame Fleeting & Towing Service, Inc., 568
F.2d 599 (8th Cir. 1978), and by deciding the factual is-
sues in this case de novo, Zenith Radio Corp. v. Hazeltine
Research, Inc., 395 U.S. 100 (1969), This Court should
state with precision the duties and obligations of the
courts of appeals with respect to their review of factual
findings, and should reinstate the factual finding by the
Magistrate and district court that the Minneapolis Police
Department standard impoundment procedures were not
followed in the instant case.

16

UNDER SOUTH DAKOTA V. OPPERMAN, 428 U.S. 364
(1976), THE POLICE VIOLATED DEFENDANT'S CON-
STITUTIONAL RIGHTS BY CONDUCTING AN INVEN-
TORY SEARCH OF HIS VEHICLE WHICH DID NOT
COMPORT WITH THE STANDARD MINNEAPOLIS
POLICE IMPOUNDMENT PROCEDURES.

In South Dakota v. Opperman, 428 U.S. 364 (1976),
this Court made clear throughout its opinion that the law
of that case applies only after a proper impoundment pro-
cedure has occurred in accordance with standard proce-
dures in the local police department.

At the officer’s direction, the car door was then un-
locked and, using a standard inventory form pursuant
to standard police procedures, the officer inventoried
the contents of the car... . 428 U.S. at 366 (em-
phasis added).

* * *

The decisions of this Court point unmistakenly to the
conclusion reached by both federal and state courts
that inventories pursuant to standard police proce-
dures are reasonable. Id. at 372 (emphasis added).

* * *

In applying the reasonableness standard [of the
Fourth Amendment] adopted by the Framers, this
Court has consistently sustained police intrusions into
automobiles impounded or otherwise in lawful police
custody where the process is aimed at securing or pro-
tecting the car and its contents. 7d. at 373 (emphasis
added).
* bod *”

The Court carefully noted that the protective search
{in Cady v. Dombrowski, 413 U.S. 433 (1973)] was

17

carried out in accordance with standard procedures
in the local police department, . . . a factor tending

to ensure that the intrusion would be limited in
scope to the extent necessary to carry out the care-
taking function. Jd. at 375 (emphasis in original;
emphasis added).

Finally, Mr. Chief Justice Burger stated that:

On this record we conclude that in following standard
police procedures, . . . the conduct of the police was
not “unreasonable” under the Fourth Amendment.
Id. at 376 (emphasis added).

In his concurring opinion in Opperman, Mr. Justice
Powell went to great lengths in stressing the importance of
adherence to standard local police impoundment proce-
dures:

As the Court’s opinion emphasizes, the search here
was limited to an inventory of the unoccupied auto-
mobile and was conducted strictly in accord with the
regulations of the Vermillion Police Department.
428 U.S. at 380 (emphasis added).

* * *

I agree with the Court that the Constitution permits
routine inventory searches . . . . Id. (emphasis ad-
ded).

In distinguishing proper inventory searches from those
searches which require a warrant, Mr. Justice Powell
noted:

Inventory searches are conducted in accordance with
established police department rule or policy and oc-
cur whenever an automobile is seized. 7d. at 383
(emphasis added).

18

Strict adherence to local police impoundment procedures
ensures the validity of warrantless inventory searches in a
number of ways. If all inventory searches in a particular
locale are conducted in strict compliance with established
police department policy, there is little danger that any
particular inventory search will in fact be conducted as a
subterfuge for criminal investigation so as to avoid the
more stringent requirements which apply to criminal in-
vestigative searches, Opperman, 428 U.S. at 376. Fur-
ther, uniform adherence to proper department standards
for inventory searches prevents hindsight from affecting the
judicial evaluation of the reasonableness of any particular
search. If a search has been conducted in strict accordance
with standard police department procedures and yields in-
criminating evidence valuable in a subsequent criminal
proceeding, there is little risk that the criminal court will
be faced with a “hindsight justification” for the search.
Id. at 383 (Powell, concurring). Finally, adherence to
standard procedures tends to ensure that police officers
will limit the scope of their inventory searches to the ex-
tent necessary to carry out their “community caretaking
functions,” Opperman, 428 U.S. at 375; see, Cady v. Dom-
browski, 413 U.S. at 441, and it is these caretaking func-
tions which justify warrantless intrusions by the police de-
partment. Opperman, 428 U.S. at 369-71.

In both federal and state courts, inventory searches have
been invalidated because they were not conducted pursuant
to standard impoundment procedures of the respective lo-
cal police departments. See, e.g., United States v. Hellman,
556 F.2d 442, 444 (9th Cir. 1977); United States v. Jack-
son, 529 F.Supp. 1047, 1055 (D. Md. 1981); State v.
Jewell, 338 So.2d 633, 639 (La. 1976); State v. Hudson,

19

390 A.2d 509, 511 (Me. 1978) (remanded to allow proof
that inventory was carried out pursuant to standard local
practice). In Hellman, the government contended that it
was enough that an inventory practice was a routine part
of impoundment procedures in most police departments
throughout the country, but the Ninth Circuit disagreed:

The fact that other police departments routinely fol-
low such a practice may give support to the proposi-
tion that such a practice, if locally followed, is reason-
able. It does not, however, render reasonable a search
where the inventorying practice is not locally followed
and the search, thus, is a departure from local prac-
tice. A locally followed practice gives some assur-
ance that the particular car was not singled out for
special searching attention.

United States v. Hellman, 556 F.2d at 444.

In the instant case, the Magistrate and district court
properly concluded that the established Minneapolis Police
Department procedures for impoundment of a vehicle were
not followed. (Magistrate’s Finding No. 9; see Appendices 1
and 2; see Argument I above.) While the court of ap-
peals “disagreed” with this conclusion, United States v.
Maier, 691 F.2d at 424 n. 2, its opinion suggests that the
Eighth Circuit did not properly consider the cross examina-
tion of the officers or the specific Minneapolis Police De-
partment policies (see Government’s Exhibit 1) regarding
impoundment. Under Opperman, the search of the truck
driven by Mr. Maier violated the Fourth Amendment, and
the evidence discovered in the course of that search should
be suppressed.

20

IN LIGHT OF THE PARTICULAR FACTS AND CIRCUM-
STANCES OF THE CASE, A FULL, NONCONSENSUAL,
WARRANTLESS SEARCH AFTER IMPOUND OF THE
CAMPER-TRUCK WAS UNREASONABLE IN SCOPE
AND UNCONSTITUTIONAL.

Even if this Court upholds the Eighth Circuit’s conclu-
sion that the search of the truck complied with standard
Minneapolis police impoundment procedures, the search
was unreasonable in scope and violated Mr. Maier’s con-
stitutional rights, “Unconstitutional searches cannot be con-
stitutionalized by standardizing them as a part of normal
police practices.” State v. Jewe'l, 338 So.2d 633, 640 (La.
1976). While this Court has recognized the constitutional-
ity of routine inventory searches conducted without a war-
rant, United States v. Chadwick, 433 U.S. 1, 10 n. 5
(1977); South Dakota v. Opperman, 428 U.S. 364, 376
(1976), the Fourth Amendment remains relevant to this
type of search. An inventory search must be reasonable
within the meaning of the Fourth Amendment in light of
the facts and circumstances of the particular case. See
South Dakota v. Opperman, 428 U.S. at 375.

The Fourth Amendment’s “reasonableness” standard
requires that an inventory search be limited in scope. In
Opperman, Mr. Chief Justice Burger stressed that adher-
ence to standard police procedures ensures that intrusions
are limited in scope to the extent necessary to carry out
the caretaking function, 428 U.S. at 375, and specifically
noted in validating the search of Opperman’s vehicle that
“(t]he inventory was not unreasonable in scope.” Id. at
376 n. 10. In his concurring opinion, Mr. Justice Powell

21

also noted that “the unrestrained search of an automobile
and its contents would constitute a serious intrusion upon
the privacy of the individual in many circumstances.”
Id. at 379-80 (Powell, J., concurring; emphasis added);
accord, United States v. Edwards, 577 F.2d 883, 893
(Sth Cir.) (en banc) cert. denied, 439 U.S. 968 (1978);
United States v. Wilson, 636 F.2d 1161, 1163 (8th Cir.
1980). See also Terry v. Ohio, 392 U.S.1, 18-19 (1968).
To determine whether the scope of a search is reason-
able, the governmental interests advanced by the inventory
search must be weighed against the privacy interest in-
vaded in light of the particular circumstances of the case.
United States vs. Wilson, 636 F.2d at 1163.

Three governmental interests have been advanced to jus-
tify inventory searches:

(1) “The protection of the owner’s property while
it remains in police custody”;

(2) “The protection of the police against claims or
disputes over lost or stolen property”; and

(3) “The protection of the police from potential
danger.”

South Dakota v. Opperman, 428 U.S. at 369. In the in-
stant case, the court of appeals concluded that the first
of these interests justified a thorough search of the truck,
including its locked camper/sleeper portion.

After discovering the large amount of money in the
cab, and in light of the absence of the owner, the
need under Opperman for a reasonable police proce-
dure for “protection of the owner’s property” justified
police in examining and making an inventory of the
entire vehicle, including the locked camper, to ensure

22

that any other valuable property would be recorded
and kept safe.

United States v. Maier, 691 F.2d at 425. Petitioner con-
tends that such a search was unreasonable in scope in light
of his greater expectation of privacy in the locked rear com-
partments of the truck and in view of the particular facts
of this case.

Warrantless examinations of automobiles have been up-
held in circumstances under which a search of a home or
office would be invalid. South Dakota v. Opperman, 428
U.S. at 367. The distinction rests on the principle that:

One has a lesser expectation of privacy in a motor
vehicle because its function is transportation and it
seldom serves as one’s residence or as the respository
of personal effects... . It travels public thorough-
fares where both its occupants and its contents are
in plain view.

Id. at 368, quoting Cardwell v. Lewis, 417 U.S. 583, 590
(1974) (emphasis added). While this principle was ap-
plicable to the car in Opperman and justified the search
of its cab and glove compartment, the same principle does
not apply to the particular vehicle in the instant case and
does not extend to a locked and concealed storage com-
partment such as that in the rear of Mr. Maier’s truck.

In United States v. Chadwick, 433 U.S. 1 (1977), this
Court distinguished the search of a locked footlocker in
a car from the search of the automobile itself because the
placing of personal effects in the footlocker manifested a
greater expectation that the contents would remain free
from public examination. 433 U.S. at 11. Like the foot-
locker in Chadwick, both rear compartments of the truck

23

driven by Maier were locked and the contents of the bot-
tom compartment were concealed from outside viewing.

In United States v. Wilson, 636 F.2d 1161 (8th Cir.
1980), the Eighth Circuit extended Chadwick and held
that an individual may justifiably have a greater expecta-
tion of privacy in the locked trunk of a car than in the
interior of the vehicle. 636 F.2d at 1164. The Eighth Cir-
cuit found persuasive the analysis by Professor LaFave:

The Court in Chadwick declared that a person’s ex-
pectation of privacy in personal luggage is substantial
as “luggage is intended as a repository of personal
effects.” But the trunk of a car is also intended as
such a repository, and thus it is not apparent why,
if “[b]y placing personal effects inside a double
locked footlocker, respondents [in Chadwick] mani-
fested an expectation that the contents would remain
free from public examination,” there is not the same
expectation when effects are secured in the locked
truck of a car. It will not suffice to point to what the
Court in Chadwick called “the diminished expecta-
tion of privacy which surrounds the automobile,” for
the reasons given for that reduced expectation are
inapplicable to the locked trunk—its contents are not
in plain view, looking within the trunk would not
“ordinarily be perinissible in order to ensure the run-
ning safety of a car” and an impounded car and its
contents may be adequately protected without intrud-
ing into a locked trunk.

636 F.2d at 164, quoting Il LaFave, Search and Seizure:
A Treatis on the Fourth Amendment, Section 7.2, pp.
540-41 (1978 and Supp. 1980). This argument applies
with equal weight to the locked and concealed lower stor-
age compartment of the truck driven by Mr. Maier. Once

24

Officers Rognlie and Carey looked in the window of the
camper top, it was clear to them that there was a locked
and concealed storage area below the plywood board
which manifested an expectation that the personal effects
therein would remain free from examination. Because the
reasonableness of an inventory is tied to the specific areas
searched, South Dakota v. Opperman, 428 U.S. at 376
n. 10, the analysis in Opperman will not lend support to a
routine inventory search of the locked lower storage com-
partment of the truck driven by Mr. Maier.

Petitioner was entitled to the protection of the Warrant
Clause with the evaluation of a neutral magistrate before
his privacy interests in the contents of the locked and con-
cealed storage area were invaded. United States v. Chad-
wick, 433 U.S. at 15-16. Moreover, while Opperman gen-
erally suggests that police officers may search any “win-
dowed” compartments of a vehicle since the contents of
these compartments are in plain view as the vehicle travels
the streets, 428 U.S. at 368, such a principle does not ap-
ply to the camper top compartment of the truck driven by
Mr. Maier. While the camper top section contained a
window through which the police officers could view its
contents, those contents and the circumstances surround-
ing their investigation provided notice to the officers that
Mr. Maier possessed a greater expectation of privacy re-
garding this vehicle than is normally the case.

When Officers Rognlie and Carey commenced their in-
vestigation, it was two o’clock in the morning. They found
Mr. Maier asleep in the truck, and the truck was pulled
far off the thoroughfare. The officers established that there
were no warrants out for Mr. Maier’s arrest and that the
truck was not stolen, and Mr Maier informed them that

25

the vehicle belonged to a friend but that he, Maier, had
been using it for the previous five months. The truck
had a “shell camper” attached in the rear, and when the
officers looked through the back window, they could see
sleeping bags in the camper/sleeper section. By looking
through the rear window, the officers could also see that
the truck had been further modified so as to create a con-
cealed storage compartment under the sleeper section.
While a motor vehicle “seldom serves as one’s residence or
as the repository of personal effects,” South Dakota v.
Opperman, 428 U.S. at 368, Officers Rognlie and Carey
had sufficient information to realize that this truck func-
tioned not simply as a mode of transportation, but as a
temporary residence/sleeping compartment for Mr. Maier.
[While Mr. Maier had been sleeping in the cab of the truck
rather than the camper/sleeper portion, this simply may
have been due to the weather on the night in question.
The incident occurred on a night in early September, Mr.
Maier was wearing only a pair of shorts and a tank top
while he slept, and his feet were dangling out the open
window of the cab when the police arrived (T. 5-6). Thus,
Mr. Maier may have been avoiding the heat of the camper
compartment on this particular night.] In this instance, the
view through the rear window informed the officers that
they were not at liberty to intrude upon this compartment
of the vehicle. Under the facts and circumstances of this
case, an inventory search, if appropriate at all, should have
been limited to the cab of the vehicle.

Further facts of this case make the search of the locked
rear compartment especially unreasonable. In Opperman,
this Court partially justified the inventory search because
“(t]he owner having left his car illegally parked for an

26

extended period, and thus subject to impoundment, was
not present to make other arrangements for the safe-
keeping of his belongings.” 428 U.S. at 375. In United
States v. Wilson, 636 F.2d 1161 (1980), the Eighth Circuit
invalidated a search in part because:

Wilson was present during the search and capable of
making other arrangements to safeguard his property.
The police could have protected their interests as well
as Wilson’s without intruding into the privacy of the
automobile trunk. The police, for example, could have
asked for Wilson’s consent to search the car, or in the
alternative, requested that Wilson arrange to remove
the car himself or to relieve police from liability for
claims. In addition, the police could have inventoried
the locked trunk as a single unit.

636 F.2d at 1165. In the case at bar, the Eighth Circuit
distinguished Wilson by emphasizing that “Maier was
alone without a valid driver’s license. and no responsible
person available to remove the truck from the sidewalk.”
691 F.2d at 424, This conclusion reflects a misconstruc-
tion of both facts and law.

The record reflects that Mr. Maier himself was an avail-
able and responsible person who could have arranged to
remove the truck or relieved the police from liability for
claims. While Mr. Maier disclaimed ownership of the vehi-
cle, he indicated to the police that he had been using the
truck for the previous five months. Thus, Mr. Maier as-
serted a credible possessory interest and was certainly
available to make arrangements for the removal of the
vehicle from the sidewalk.

This Court has indicated that a possessory interest in an
automobile is sufficient to raise an expectation of privacy.

27

Rakas v. Illinois, 439 U.S. 128, 148-49 (1978); Jones v.
United States, 362 U.S. 257 (1960). Officers Rognlie and
Carey knew that the truck was not stolen, knew that there
was no warrant out for Mr. Maier’s arrest, and had no
reason to question his possession of the truck. Under the
circumstances, Mr. Maier’s status was identical to that of
the defendant in Wilson insofar as making arrangements
for removal of the vehicle so as to ensure the security of its
contents. See United States v. Wilson, 636 F.2d at 1165-
66. The case at bar is indistinguishable on its facts from
Wilson, and the district court was correct in concluding
that the inventory search of the camper-truck driven by
Mr. Maier was unreasonable under the Fourth Amend-
ment.

CONCLUSION

For the reasons set forth above, this Court should de-
clare the search of the truck driven by Petitioner violative
of his constitutional rights and should reverse the judg-
ment of the Eighth Circuit.

MARC G. KURZMAN
SCOTT G. HARRIS
KURZMAN, SHAPIRO, MANAHAN & PARTRIDGE
601 Butler Square
100 North Sixth Street
Minneapolis, MN 55403-1579
(612) 333-4403
Attorneys for Petitioners

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0464%3A1. Public record. Not legal advice.