Respondents Brief — Colorado v. Bertine

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QUESTIONS PRESENTED

1. Whether the discretionary and pretextual inven-

tory search of luggage is an unreasonable search and

seizure under the Fourth Amendment?

2. “ Whether the routine field inventory search of lug-

gage is justified, necessary and reasonable under the

Fourth Amendment?

TABLE OF CONTENTS

EER ROE A

PERTINENT STATE CoURT PROCEEDINGS.............

TRI ss ic ie aeiit tae is eta

II.

ITI.

THE SEARCH OF BERTINE’s Backpack Was Nor

A VaLip INVENTORY BECAUSE Or ELEMENTs OF

NONROUTINE DISCRETION AND INVESTIGATIVE

BOUUOUEE. 4 6 6in kd ovveceleedcos cee.

A. The Impound/Inventory Procedure Gave

Unbridled Discretion As To The Scope Of The

eras eee

B. There Is Evidence Of A Pretextual Inventory

Search To Conceal An Investigative Motive. .

AN AUTOMOBILE INVENTORY SEARCH Is Not AN

EXCEPTION To THE WARRANT REQUIREMENT

Wuicu WouLp ALLow THE WARRANTLESS

SEARCH Or LuGGaGE Or A CLosED CoNTAINER

FounD IN AN AUTOMOBILE ...................

A. A Search Of Luggage Is Not An Exception To

The Warrant uirement Even When Such

Luggage Is Found In An Automobile .......

THE INVENTORY SEARCH OF BERTINE’s BAck-

PACK Was UNREASONABLE BECAUSE BERTINE

Hap A HicH ExpectaTIon Or Privacy IN THE

CoNnTENTsS OF THE LUGGAGE AND THERE Was No

NEED For THE Po.ice To S: arcu INsipE It ..

A. Opperman Did Not Authorize Invento

Searches Of The Contents Of Repositories

Personal Effects, Such As L , In Which

There Is A High Expectation vacy ....

B. i aa pene ing That An Inventory Search

An Automobile Reasonable Should Not

Be Extended To Validate An Inventory Of The

Contents Of Luggage .....................

1. Sealing, Securing And we tee A

Backpack As A Unit Safeguards The

Property, Protects The Police From False

Claims, And Protects Police From Dan-

gerous Instrumentalities .............

Table of Contents Continued

Page

2. Other Considerations In This Case,

lnciading Se Absence Of Consent To

Search, Militate Against Upholding The

Stationhouse Inventory ...........---- 32

IV. Tue INVENTORY SEARCH UPHELD IN ILLINOIS V.

LAFAYETTE Was A PREINCARCERATION, STA-

TIONHOUSE INVENTORY SEARCH AND Is [NAP

PLICABLE To THE SEARCH OF A CLOSED

ConTAINER FounpD IN AN AUTOMOBILE .....--- 35

V. Tue SINGLE FAMILIAR STANDARD For THE

FIELD INVENTORY OF CoNTAINERS SHOULD BE

NARROWLY DRAWN To Protect SUBSTANTIAL

EXPECTATIONS OF PRIVACY ......--+-eeeeeeees 38

CONCLUSION. ...cccccccccccccccccccccccccccccccess 41

TABLE OF AUTHORITIES _

Arkansas v. Sanders, 442 U.S. 753 (1979).......... passim

Bell v. Wolfish, 441 U.S. 520 (1979) .................. 20

Bradford v. State, 401 N.E.2d 77 (Ind. App. 1980) ..... 29

Brown v. Texas, 443 U.S. 47 (1979)..............00. 15, 18

Cady v. Dombrowski, 413 U.S. 483 .................. 31

Camara v. Municipal Court, 387 U.S. 523 (1967)...... 25

Cardwell v. Lewis, 417 U.S. 588 (1974) ............... 22

Carroll v. United States, 267 U.S. 132 (1925).......... 21

Chambers v. Maroney, 399 U.S. 42 (1970). ............ 21

Coolidge v. New Hampshire, 403 U.S. 443 (1971) ...... 21

Delaware v. Prowse, 440 U.S. 648 (1979). ........... 14, 18

Dunaway v. New York, 442 U.S. 200 (1979) ........... 38

Gaston v. State, 155 Ga. App. 337, 270 S.E.2d 877 (1980) 33

Hicks v. State, 398 So.2d 1008 (Dist. Ct. App. Fla. 1981) 29

Illinois v. Lafayette, 462 U.S. 640 (1983)........... passim

In the Matter of B.K.C., 413 A.2d 894 (D.C. App. 1980) 19

Jones v. United States, 357 U.S. 498 (1958) ........... 20

Manalansan v. State, 45 Md. App. 667 415 A.2d 308

SF RIS PA al Sa co na 19, 28

Mapp v. Ohio, 367 U.S. 643 (1961) ........... dadckies 20

Miller v. State, 403 So.2d 1307 (Fla. 1981) ............ 19

New York v. Belton, 453 U.S. 454 (1981)............ 24, 38

New York v. Class, ___. U.S. ___, 106 S.Ct. 960 (1986) 40

Niz v. Williams, 467 U.S. 431 (1984) ................. 40

Obermeyer v. State, 97 Nev. 158, 625 P.2d 95 (1981).... 28

People v. Bayles, 82 Ill.2d 128, 411 N.E.2d 1346 (1980),

cert. denied, 453 U.S. 923 (1981).................

People v. Bertine, 706 P.2d 411 (Colo. 1985)........ 3, 17, 37

People v. Counterman, 192 Colo. 152, 556 P.2d 481

CIPS cnnsinudenicedienietninds Uateks canes 1, 16, 28

People v. Grana, 185 Colo. 126, 527 P.2d 543 (1974) .... 28

People v. Hamilton, 74 Ill.2d 457, 386 N.E.2d 53 (1979) 29

People v. Helm, 89 Iil.2d 34, 431 N.E.2d 1083 (1981). 29, 31

People v. Laiwa, 34 Cal.3d 711, 669 P.2d 1278 (1983)... 36

People v. Miller, 110 Mich. App. 270, 312 N.W.2d 225

Gs s 060s kdbeeSe dcectas endo eae e Gass 6s e 28

People v. Salter, 91 Ill. App.3d 831, 414 N.E.2d 1252

DET bo cencvednens Sebsaduensedl wabanndshbacce 28

Table of Authorities Continued —

People v. Siegel, 95 Mich. App. 594 291 N.W.2d 134 (1980) 19

People v. Weeams, 665 P.2d 619, (Colo. 1983) .......... 2

Rakas v. Illinois, 489 U.S. 128 (1978) ...........---.- 26

Reeves v. State, 599 P.2d 727 (Alas. 1979) ............. 29

Robbins v. California, 453 U.S. 420 (1981).......... 13, 40

Smith v. State, 48 Md. App. 425, 427 A.2d 1064 (1981).. 28

Snyder v. Massachusetts, 291 U.S. 97 (1933) .......... 34

South Dakota v. Opperman, 428 U.S. 364 (1976).... passim

sab “d _—— 94 N.M. 263, 609 P.2d 345 (Ct. App.

State v. Daniel, 589 P.2d 408 (Alas. 1979) ............. 28

State v. Downes, 285 Or. 369, 591 P.2d 1352 (1979) ..... 28

State v. Gluck, 83 Wash.2d 424, 518 P.2d 703 (1974).... 19

State v. Goff, 272 S.E.2d 457 (W. Va. 1980)............. 34

State v. Gwinn, 301 A.2d 291 (Del. 1972)............ 28, 31

State v. Hatfield, 364 So.2d 578 (La. 1978) ............ 33

State v. Houser, 95 Wash.2d 143, 622 P.2d 1218 (1980)... 28

State v. Jewell, 338 So.2d 633 (La. 1976).............. 34

State v. Kaluna, 55 Haw. 361, 520 P.2d 51 (1974)....... 29

State v. Keller, 265 Or. 622, 510 P.2d 568 (1973) ........ 28

State v. Killcrease, 379 So.2d 737 (La. 1980) .......... 34

State v. Knight, 621 P.2d 370 (Hawaii 1980) ........... 19

State v. Mangold, 82 N.J. 575, 414 A.2d 1312 (1980).... 34

State v. McDougal, 68 Wis.2d 399, 228 N.W. 2d 671

EE os ivccctdsbetdasbastebaratseasress 28, 31, 33

State v. Miller, 420 A.2d 181 (Del. Super. 1980)........ 19

State v. Morgan, 3 Kan. App.2d 667, 600 P.2d 155 (1979) 28

State v. Pace, 171 N.J. Super. 240, 408 A.2d 808 (1979) . 28

State v. Peterson, 583 S.W.2d 277 (Mo. App. 1979) ..... 19

State v. Potter, 8 Kan. App.2d 52, 648 P.2d 1162 (1982)... 28

State v. Prober, 98 Wis.2d 345, 297 N.W.2d 1(1980).... 28

State v. Roth, 305 N.W.2d 501 (Iowa 1981), cert. denied,

GE EE Aecadisncasdseedcncedsescoens

State v. Schmidt, 359 So.2d 133 (La. 1978) ............ 33

State v. Southwell, 369 So.2d 371 (Dist.Ct.App.Fla. 1979) 33

Thompson v. State, 83 Wis.2d 134, 265 N.W.2d 467 (1978) 19

United States v. Abbott, 584 F.Supp. 442 (W.D. Pa. 1984) 19

Table of Authorities Continued

United States v. Andrade, 784 F.2d 1431 (9th Cir. 1986) 39

United States v. Bloomfield, 594 F.2d 1200 (8th Cir.

NORRIE: oe ce so tees 2 ro ia 28, 30

United States v. Chadwick, 433 U.S. 1 (1977)....... passim

United States v. Cooper, 428 F.Supp. 652 (S.D. Ohio),

affd, 564 F.2d 100 (6th Cir. 1977) ................

United States v. Davis, 501 F.Supp. 23, (N.D. Ga. 1980),

aff'd, 647 F.2d 1119 (5th Cir. 1981) ...............

United States v. Hill, 458 F.Supp. 31 (D.D.C. 1978).... 31

United States v. Ladson, 774 F.2d 436 (11th Cir. 1985).. 40

United States v. Lyons, 706 F.2d 321 (D.C. Cir. 1983)... 40

United States v. Martinez-Fuerte, 428 U.S. 543 (1976).. 31

United States v. Mills, 472 F.2d 1231 (D.C. Cir. 1972).. 29

United States v. Monclavo-Cruz, 662 F.2d 1285 (9th Cir.

dis 6 om eshte pein dein ate «recs 5-6 ¢ 29, 31

‘United States v. Parr, 716 F.2d 796(11th Cir. 1983) ..... 40

United States v. Place, 462 U.S. 696 (1983) ........... 24

United States v. Ross, 456 U.S. 798 (1982)........... 24, 28

United States v. Schleis, 582 F.2d 1166 (8th Cir. 1978).. 29

United States v. Vallieres, 443 F.Supp. 186 (D.Conn.

RR RRR Ey PNA EE tas” connie dai pa 28

United States v. Wilson, 636 F.2d 1161 (8th Cir. 1980). 28, 34

Wagner v. Higgins, 754 F.2d 186 (6th Cir. 1985)........ 39

Wolf v. Colorado, 338 U.S. 25 (1949) ................. 20

Zehrung v. State, 569 P.2d 189 (Alas. 1977), modified 573

ave 33

CONSTITUTIONAL PROVISIONS:

te CR, PINE BW ccc cccccccccccvcs 1, 10, 14, 24, 26

fF RE ean ne ee 1

Colo. Const. Article II, Section 7................ 1, 2, 3,4

STATUTES AND RULEs:

Colorado Revised Statutes (1978) § 16-3-101........... 1

Colorado Revised Statutes (1978) § 16-3-308........... 2

Rule 41 of the Colorado Rules of Criminal Procedure . . . 1

Rule 4.1(a) of the Colorado Rules of Criminal Procedure 1

vii

Table of Authorities Continued

MISCELLANEOUS: Page

Comment, 1968 U. Ill. L.F. 401.........--22eee eee eee 30

Il’‘nois v. Lafayette: Has the Fourth Amendment Van-

ished in the Face of Administrative Expediency? 21

Cal. W.L. Rev. 218 (1984) ........--e cece eee eeeees 37

LaFave, “Case-by-Case Adjudication” versus “Standard-

ized Procedures”: Robinson Dilemma, 1974

DE ME BE cv ccandedeccsseteseedosesceucesoe 39

2. W. LaFave, Search and Seizure (1978)..... 18, 25, 31, 33

WR. LaFave & J.H. Isreal, Criminal Procedure (1984) 39

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PERTINENT STATE COURT PROCEEDINGS

The Respondent adopts the Petitioner's statement of

the state court proceedings with the following additions

and corrections.

The Respondent’s motion to suppress evidence alleged

that search of the van was not pursuant to a valid inven-

tory search; that the search of the closed backpack and

other containers exceeded the scope of a valid inventory

search, citing People v. Counterman, 556 P.2d 481 (1976);

that the search and seizure was in violation of Colorado

Revised Statutes § 16-3-101 et seq.; Rule 41 of the Colo-

rado Rules of Criminal Procedure; article II, section 7 of

the Colorado Constitution; and the Fourth and Four-

teenth Amendments of the United States Constitution.

(J.A. 1-3).

On July, 1984, the People filed a Notice of Interlocutory

Appeal with the Colorado Supreme Court pursuant to

Colorado Appellate Rule 4.1(a)! The only appealable

issue at this stage of the pre-trial state court proceedings

was the trial court’s order granting the defendant’s

motion to suppress in reliance upon article II, section 7 of

the Colorado Constitution and Colorado case law. (J.A.

31, 39, 75, 88, 88). The trial court had denied defendant’s

motion to suppress based upon the Fourth and Four-

teenth Amendments of the Constitution of the United

States on the authority of Illinois v. Lafayette, 462 U.S.

640 (1983) (J.A. 83). This ruling was nonreviewable on

1 Rule 4.1 Interlocutory appeals in Criminal Cases. (a) Grounds.

“The State may file an interlocutory appeal in the supreme court from

a ruling of a district court granting 2 motion made in advance of trial

by the defendant . . . to suppress evidence . . . provided that the

state certifies to the judge who granted such motion that the appeal is

not taken for purposes of delay and the evidence is a substantial part

of the proof of the charge pending against the defendant.

interlocutory appeal. Nor were the other trial court’s

rulings adverse to defendant’s position interlocutorily

reviewable; i.e., compliance with standard impound/

inventory procedure, pretextual investigatory search.

The questions presented in the prosecutor's brief to the

Colorado Supreme Court on interlocutory appeal were as

follows:

1. Did the search of the violate the Fourth

Amendment to the United States Constitution?

2. Should article II, section 7 of the Colorado Con-

stitution be interpreted consistent with the

Fourth Amendment to the United States Consti-

tution with respect to inventory searches of

closed containers?

3. Did the search of the backpack viclate article II,

section 7 of the Colorado Constitution, as that

provision has been interpreted in recent deci-

sions of this Court?

4. Assuming, ee, that this Court upholds

the trial court's finding of a violation of the Colo-

rado Constitution, should the remedy be sup-

pression on the evidence found in the backpack?4

2 See footnote 1, supra; People v. Weeams, 665 P.2d 619, 623 (Colo.

1983) (defendant not entitled to interlocutory review of issues under

Colorado Appellate Rule 4.1(a)).

3 As noted in footnote 2 supra this was a nonreviewable issue on

this interlocutory appeal because the trial court had agreed with the

prosecution's position at the trial court level and denied the motion to

suppress evidence on Fourth Amendment grounds. The Colorado

Supreme Court's discussion of Lafayette is therefore advisory dicta.

*Here the prosecution raised the Colorado statutory good faith

exception to the exclusionary rule, C.R.S. § 16-3-308. The Colorado

Supreme Court did not mention or rule upon this issue in its opinion.

On September 30, 1985, a majority of the Colorado

Supreme Court, in an opinion by Justice William

Erickson,® affirmed the trial court’s order granting the

defense motion tu suppress the evidence seized from the

defendant's backpack. (J.A. 51). The trial court ruling, as

previously noted, was grounded solely on article II, sec-

tion 7 of the Colorado Constitution. Contrary to the state-

ment in Petitioner’s brief at 11, the Colorado Supreme

Court did not base its decision squarely and solely on the

Fourth Amendment and thereby avoid reaching the issue

of the protections afforded by the Colorado Constitution.

The Stave supreme court stated:

In the present case, although the district court su

the evidence on state constitutional grounds,

the court concluded that the inventory search of

defendant's rights under the United States Constitu-

tion. The [trial] court reasoned that [/linois v.

, 462 U.S. at 640. . . rejected our fourth

amendment analysis in Counterman. We disagree.

706 P.2d at 416.

The Court presents an extensive analysis of Lafayette as

applied to the facts of this case and concludes:

“(Ojur decision in Cownterman is dispositive of the

issues raised in this appeal. We therefore affirm the

trial court’s order suppressing the evidence. Because

we view the search here as violative of fourth amend-

ment protections, we need not decide whether article

II, section 7 of the Colorado Constitution provides

citizens of this state with greater protections than the

United States Constitution in the area of automobile

inventory searches.

The trial court’s Oa order is therefore

affirmed. (Emphasis added.)

5 People v. Bertine, 706 P.2d 411 (Colo. 1985).

706 P.2d at 419.

The majority opinion interprets the state constitution

at least coextensively with their interpretation of the

Fourth Amendment. The Colorado supreme court never

reached the only issue properly before it on the inter-

locutory appeal—the trial court’s ruling that the inven-

tory search violated the higher standard provided by

article II, section 7 of the Colorado Constitutions for

inventory searches. This issue awaits the state court and

Petitioner upon any vacation of the decision of the lower

court.

The factual situation in this case is therefore more

complex, more contested, and less resolved by the lower

court than indicated by Petitioner in his statement of

facts. Many of the factual issues raised in respondent’s

motion to suppress were not addressed by the state

supreme court because of the limited interlocutory nature

of the prosecution’s appeal (not allowing review of issues

decided adverse to the defendant) or because the court's

ruling made the consideration of those additional issues

unnecessary.

STATEMENT

The Statement of the Case in Petitioner's brief contains

inaccuracies and also omits facts which are material to the

consideration of the questions presented.

The testimony at the suppression hearing showed that

on February 10, 1984, at approximately 12:50 a.m., Mr.

Bertine was driving south on Broadway Avenue which

borders the University of Colorado campus. Officer Julius

Toporek (Toporek) observed Bertine’s 1957 panel truck

speeding and changing lanes without signalling. (J.A.

~ 6-8). Toporek followed the van and estimated the truck's

speed at fifty to fifty-five miles per hour. Toporek turned

on his overhead lights and stopped Bertine near the inter-

section of two major avenues at the corner of the campus.

Toporek approached the van and asked the driver, Steven

Lee Bertine, for his driver’s license and registration,

which he produced. Mr. Bertine’s appearance was

described as shoulder length hair and full beard. (R. 51).

His dog was the only other occupant in the vehicle. Boul-

der is a city with a large university student population.

(J.A. 26). In talking to Bertine, Toporek detected a strong

order of an alcoholic beverage on his breath.

After Toporek obtained the information from Bertine’s

driver’s license, he notified the Boulder Police communi-

cations center by radio that he had stopped a possibly

intoxicated driver. (R. 10). Officer Reichenbach (Reichen-

bach) was dispatched to the scene as a back-up patrol unit.

(R. 10). Officer Reichenbach was a Drug Enforcement

Administration trained narcotics officer. (J.A. 34).

Toporek returned to the truck and asked Bertine to

step from the van and perform a series of roadside

sobriety tests. Bertine complied with the request and

began the roadside test. Bertine did not have any trouble

understanding or responding to Toporek’s instructions

and questions. (R. 49, 130-131). He was cooperative. (J.A.

46). Reichenbach arrived just after Bertine had started

the roadside tests. (J.A. 14).

Toporek concluded, based on his observations, that

Bertine was intoxicated and advised him that he was

under arrest for driving under the influence. After taking

Bertine into custody, handcuffing him, and placing him in

the front seat of his patrol car, Toporek asked Reichen-

bach to impound the truck. Toporek had not discussed the

impoundment with Bertine. He did not ask Bertine if he

wanted to contact a third party to take custody of his

truck and dog, nor give Bertine any options rather than

having the truck towed. Bertine was also not asked if he

would waive any police liability in lieu of an inventory.

(J.A. 75). Bertine was not asked if he wanted his truck

inventoried (J.A. 50). Reichenbach had no conversation

with Bertine at all. (R. 42). An animal control unit

removed Bertine’s dog before Reichenbach entered the

truck.

Officer Reichenbach testified that the first thing he does

when he inventories a vehicle is “just look around

throughout the vehicle to see if there is anything obvious

that needs my attention.” (R. 43). After quickly looking in

the glove box, Reichenbach found a closed brown back-

pack directly behind the front bench seat in the middle of

the vehicle. (J.A. 24, R. 43). He removed the backpack

from the truck, took it back to his patrol vehicle, and

began to search it. (R. 43).

The officer first unzipped the main compartment of the

pack where he found, among other things, a separate

opaque tan zippered closed nylon bag. (J.A. 32). He then

unzipped this smaller nylon bag and found three opaque

clip-locked, rectangular tin canisters and a small “Irish

Mocha Mint” coffee can with a plastic cover. The officer

opened the double clip locks on the tin cannisters and

found the contraband in issue. He also opened the coffee

can and found additional contraband.

When Reichenbach began his search of the backpack,

he knew Mr. Bertine’s wallet was still on the front seat of

the truck (R. 39), and he admitted that there was nothing

suspicious about the backpack. (J.A. 47). Reichenback

knew the average person on the street in Boulder carries

personal items in backpacks (J. A. 26), but he also testified

that out of the thirty (30) to fifty (50) backpacks that he

had searched as a police officer in Boulder, as many as

twenty (20) to twenty-five (25) of them had contained

controlled substances or drugs. (J.A. 47).

After searching the backpack, he went back up to the

truck and “inventoried” the rest of the vehicle. (R. 45, J.A.

53). The tow truck was not called until after the “inven-

tory” of the truck was started. (R. 70). He looked for any

obvious damage on the outside of the truck (R. 45) and

could see jumper cables, blankets, a sand bag, tire and

shovel from outside the truck looking in. (R. 45). These

items were listed on the impound sheet. (J.A. 53).

After the inventory search was completed, the van was

released to a private tow truck company for removal to its

private vehicle storage lot.

On cross-examination, Reichenbach testified that

nothing about the backpack made him suspect it con-

tained anything of significant value. (J.A. 49). The back-

pack, zippered pouch, cannisters and coffee can could

have been sealed with evidence tape and stored until

released to Bertine. (J.A. 48-49, 54, R. 64, 67). When the

tin cannisters were removed from the nylon pouch, the

tops were securely fastened with a clip on each end. (J.A.

34). Nothing indicated that they contained anything valu-

able or dangerous. (J.A. 54). Reichenbach had never seen

tin cannisters like that before and he became “somewhat

curious” about what was inside. (J.A. 65).

Although Reichenbach stated that he wou'd have

looked under the driver’s seat during an inventory, he did

not list a hydraulic jack (worth $30.00), a tripod jack, tire

iron, or tire chains (worth $70.00), which were located

there. (R. 62, 113). He did not remember those items

being there. (R. 62). Reichenbach did not list the contents

of the glove compartment and could not recall anything

“unusual” or “of significance” being there other than some

papers. (R. 43, 63). When Bertine recovered the truck,

the glove compartment papers were in complete disarray

(R. 99), and an A.C. electrical convorter (worth $25.00)

was still in the glove compartment (R. 100). It was the

largest item in the glove compartment and would have

been impossible to overlook. (R. 100).

Bertine’s wallet, left on the front seat, was searched

but not inventoried before being placed into the defend-

ant’s property at the jail. (R. 41). Reichenbach couldn’t

remember whether or not the wallet contained credit

cards and admitted that if a later claim had been made, he

would not have known what had actually been in it at the

time it was searched other than the $150.00 in currency

which as placed into the property storage facility as evi-

dence. (R. 41, 21).

A sealed white envelope marked “Rent” was found in

the front zipped pocket of the backpack. It was torn open

“because it felt like cash,” but was never entered on the

property or impound report. The $210.00 was mentioned

only in the incident narrative report. (J.A. 41-42).

The written Boulder Police Department general pro-

cedures regarding motor vehicle impounds were admitted

into evidence (J.A. 89-95). The testimony of the officers

showed that the Boulder Police do not impound every car

from which a custodial arrest of the driver is made (J.A.

51). Pursuant to Section III of the impound procedures,

the car can be left legally parked on the street with the

owner's consent, or released to a responsible third party

(J.A. 51, 95). There is no distinction between an alcohol-

related arrest and any other custodial traffic arrest, and

the Boulder police do not impound every car in which a

drunk driver is arrested (J.A. 51, 59). Tie procedures

allow an arrestee’s car to be removed to any public parking

area and left under a “park and lock” procedure. Such an

area existed at the intersection where Bertine was stop-

ped (J.A. 43). This procedure is sometimes used (J.A. 51).

An inventory under a “park and lock” procedure prohibits

the opening and search of closed containers that give no

indication of containing either valuables or a weapon (J.A.

92, 61), while an impound of the vehicle requires a

detailed vehicle inspection and inventory (J.A. 90). Reich-

enbach testified that he was familiar with the vehicle

impound general order, and that he made “his own discre-

tionary decision” not to move Bertine’s car to the nearby

public parking lot (J.A. 63-64). It is the individual officer's

discretion whether to impound or park and lock (J.A. 60).

Even if an inventory is done, the officer has discretion

about what items to inventory (R. 144). Toporek testified

that the inventory and search of closed containers would

“depend on the circumstances,” and the officer's “individ-

ual preference” or “whatever arouses his suspicions as far

as what may be contained in any type of vehicle.” (J. A. 74,

87). Reichenbach would never search the trunk of a car

without a search warrant (J.A. 44-45). Toporek would

open the trunk “to see if anything of value needed to be

listed” on the inventory (R. 144).

Bertine’s truck was towed to a lighted private storage

lot with a locked six-foot fence on the property of a local

Ford dealership. (J.A. 69-70). The lot is patrolled by pri-

vate security officers and police and nothing had ever been

stolen out of a vehicle stored in the lot (J.A. 70, 71).

Vehicles have been towed and stored with the doors tape

sealed (J.A. 68) and once the transmission is in neutral,

access to the interior is unnecessary for towing and stor-

age (J.A. 67-68). In cost Mr. Bertine $34.00 for the tow and

storage of his truck and $24.00 to get his dog released

from the pound. (R. 110).

SUMMARY OF THE ARGUMENT

I. Theinventory exception rationale is based upon the

non-investigatory and non-discretionary nature of the

search. In this case, there is evidence that the search was

not routine and had an investigative intent and therefore

was not a valid inventory.

II. The Fourth Amendment normally requires a war-

rant to be issued before the instigation of a search. The

warrant must be based upon probable cause. Searches not

complying with the warrant requirement are invalid and

any evidence seized during such a search is subject to

exclusion. However, there are exceptions to the warrant

requirement.

The constitutionality of these exceptions is based on the

reasonableness of the search. Reasonableness is deter-

mined through balancing the individual’s privacy inter-

ests against the governmental interests in the intrusion.

Although there are exceptions, an automobile inven-

tory search is not one that would allow the warrantless

search of luggage or a closed container found in an auto-

mobile.

This Court, in Arkansas v. Sanders, 442 U.S. 753

(1979) and United States v. Chadwick, 433 U.S. 1 (1977),

recognized that luggage, as repositories of personal

effects, was not subject to the automobile exception to the

warrant requirement.

In Sanders, the Court held that luggage was not sub-

ject to a search merely because it was found in a moving

automobile. The Court reasoned that there was no more

compelling interest to search luggage taken from an auto-

mobile than from any place else.

The Chadwick Court first enunciated the principle that

luggage was not subject to a search due to its nature. In

Chadwick it was argued that the privacy interests in

luggage were similar to that in an automobile. This rea-

soning was rejected, as luggage once seized is not mobile

and luggage does not have a diminished expectation of

privacy like an automobile.

The Court in Sanders concluded that if a search of

luggage found in an automobile was to be justified without

a warrant, some exception other than that applying to

automobiles must be utilized.

The petitioner attempts to justify the warrantless

search of respondent’s backpack under the inventory

exception to the warrant requirement under South

Dakota v. Opperman, 428 U.S. 364 (1978) and Jllinois v.

Lafayette, 462 U.S. 640 (1983).

Although this Court has recognized an automobile

inventory search in Opperman and a preincarceration

stationhouse inventory search in Lafayette to be excep-

tions to the warrant requirement, neither of these excep-

tions are applicable to the case at bar.

III. The inventory of Bertine’s backpack was unrea-

sonable since the interests advanced to justify it were

outweighed by his privacy interests in the luggage.

Opperman. Although Opperman upheld the inventory

search of a car, it did not authorize an inventory of a

repository of personal effects. In Opperman the Court

held that a routine automobile inventory, found by lower

courts to be essential to perform caretaking functions,

was reasonable.

Implicit in Opperman, however, is a limitation: an

inventory must be reasonable in scope. Consequently,

many of the courts considering inventories of containers

have employed this same analysis in finding such searches

unreasonable in scope. There is a greater expectation of

privacy in a container than in an automobile and such

expectation is not reduced by the location of the container.

Furthermore, safeguarding a backpack presents none of

the substantial burdens involved in caretaking auto-

mobiles. Arkansas v. Sanders, 442 U.S. 753 (1977).

Courts have thus found virtually no need for the invento-

ries since the containers can be sealed, secured and inven-

toried as a unit.

The petitioner urges that Opperman be extended to

authorize luggage inventories, relying on four interests

purportedly necessitating them: safeguarding the prop-

erty, protecting the police from claims of lost or stolen

property, preventing harm to police, and ascertaining or

verifying identity. Sealing, securing and inventorying

containers as a unit adequately serve the first three inter-

ests. Thieves or vandals can have no access to the locked

property. Similarly, inventorying containers without

opening them actually minimizes property claims since

the contents will never have been touched by police. The

fourth interest, the need to ascertain identity, is gener-

ally served by merely asking for identification.

In this case there was no need to inventory the contents

of the luggage. Officer Reichenbach concluded that no

danger existed and the contents could easily have been

safeguarded by sealing the backpack. Other facts sug-

gesting the inventory was unreasonable were the failures:

to seek Bertine’s consent, to advise him of the purpose of

the inventory, and to permit him to make other arrange-

ments for the caretaking of his truck and belongings.

Therefore, because there was no need to inventory the

contents of the backpack in which Bertine has a substan-

tial expectation of privacy, the inventory was unreasona-

ble.

IV. Similarly, the Lafayette case is inapposite to the

case at bar. The justification for allowing the preincar-

ceration stationhouse invenory search in Lafayette was

the compelling governmental interests in preventing con-

traband and dangerous objects into the jail environment.

This fundamental governmental interest was viewed by

the Court to outweigh the individual's limited privacy

interest in articles in his possession at the stationhouse.

This Court was emphatic in stressing the limited scope of

this case to stationhouse searches incident to incarcera-

tion. The obvious problem, therefore, in applying

Lafayette to the present case is that the search of Mr.

Bertine’s luggage was not carried out in the stationhouse

prior to incarceration. Thus, the compelling governmen-

tal interest of Lafayette does not exist here.

Since Mr. Bertine’s individual privacy interests are not

diminished, nor the governmental interests compelling,

the rationales of Opperman and Lafayette are equally

inapplicable to the present case.

V. The single familiar standard in the field inventory

of luggage and closed containers should be narrowly

drawn to protect the substantial privacy interests in these

repositories of personal effects. The rule of Robbins v.

California would provide a doctrinal framework for pre-

venting unrestricted, pretextual inventory searches in

the field. By prohibiting the opening of luggage and closed

containers except when the contents are in plain view or

are reasonably believed to be dangerous, the Court will

properly balance the privacy interests and legitimate gov-

ernmental interests involved in the field inventory con-

text.

ARGUMENT

I. THE SEARCH OF BERTINE’S BACKPACK WAS NOT A

VALID INVENTORY BECAUSE OF ELEMENTS OF

NONROUTINE DISCRETION AND INVESTIGATIVE

MOTIVE.

The validity of the inventory search of the contents of

Steven Bertine’s backpack cannot withstand scrutiny

under minimal prerequisites of a valid inventory—lack of

arbitrary discretion and standardized procedures. South

Dakota v. Opperman, 428 U.S. 364 (1976).

The facts of this case and the testimony of the two

Boulder police officers involved in the seizure and search

of the truck, the backpack, and its contents show that the

officers had considerable discretion as to whether to initi-

ate an impound or to “park and lock” the truck in a public

parking space. (J.A. 60) This discretion regarding

impoundment directly affects the permissible scope of the

subsequent inventory depending upon which safekeeping

procedure is selected.

The lack of investigative motive in the routine inven-

tory search is the crucial factor which saves the search

from scrutiny under the warrant clause of the Fourth

Amendment. The facts of this case show that the initial

investigative motive of the search of the backpack was

later justified by a “routine” impoundment and inventory.

A. The Impound/Inventory Procedure Gave Unbridled

Discretion As To The Scope Of The Inventory Search.

The individual’s expectation of privacy must be pro-

tected from “arbitrary invasions solely at the unfettered

discretion of officers in the field.” Delaware v. Prouse, 440

U.S. 648 (1979); Brown v. Texas, 443 U.S. 47 (1979). It is

this lack of discretion which saves the routine inventory

search from scrutiny under the warrant clause. As Jus-

tice Powell explained in Opperman:

The officer [in an inventory search] does not make a

discretionary determination to search based on a

judgment that certain conditions are present. Inven-

tory searches are conducted in accordance with

established police department rules or policy and

occur whenever an automobile is seized.

A related purpose of the warrant requirment is to

prevent hindsight from affecting the evaluation of the

reasonableness of a search ... In the case of an

inventory search conducted in accordance with stan-

dard police department procedures, there is no sig-

— danger of hindsight justification. 428 U.S. at

Justice Powell further states:

More importantly, no a discretion is coma

in the hands of the individual officer: he usually has no

— as ae the subject of the search or its scope. 428

.». at 384.

The Solicitor General argues (Brief at 10) that in the

case of an inventory search, the officer “does not make a

discretionary determination to search,” quoting Justice

Powell above.

The trial court found that the Boulder police procedure

gave considerable discretion to the police (J.A. 80). The

officers had three alternatives in this case: seize and tow

the truck; park and lock the truck in a public parking area;

or release the truck to a designated third party. (J.A.

92-94). The regulations also anticipate consultation with

the owner regarding his desires regarding disposition of

his property. (J.A. 92-94).§

These regulations prohibit the opening and inventory

search of closed containers “that give no indication of

containing either valuables or a weapon when the vehicle

is parked and locked.” (J.A. 92-93). A reasonable argu-

ment can be made that this language regarding the lim-

ited scope of the inventory of closed containers would

apply even under the impoundment procedure. See People

v. Counterman, 192 Colo. 152, 556 P.2d 481 (1976). This

limiting scope language is a direct quote from the Coun-

terman opinion. Jd. at 485.

The decizion to tow or to park and lock is committed

totally to the unguided discretion of the individual police

officer, (J.A. 63-64).

The only limitation on the scope of the resulting inven-

tory is contained under the “park and lock” procedures

section which forbids the search of closed containers. It is

difficult to understand this distinction in the procedures if

the same governmental interests of protection from lia-

bility and dangerous instrumentalities are actually served

in both situations.

The practical effect of this discretionary procedure is to

leave the owner of the automobile subject to the unbridled

6 Respondent would endorse and incorporate the American Civil

Liberties amicus position that any lawful impound or inventory of a

citizen's property be preconditioned on consultation and consent by

the owner when the owner is present. See, Appendix A-samples of

department regulations.

whim of the officer in the field.? This is precisely the

discretion to invade private property which this Court has

consistently circumscribed by a requirement that an

established, standardized police department procedure

exist and be followed. Opperman at 376; Lafayette at 647.

There is no evidence that the police were following a

“routine” or “standard” procedure that in any manner

limited their discretion to choose the targets of their tow

and inventory procedures rather than “park and lock.”

The impermissible discretion in the officers’ decision to

inventory and tow in this case is reflected in Reichenbach’s

definitional criteria—any vehicle “used in the commission

of a crime.” Any car involved in a traffic offense/arrest

situation would quality. (J.A. 59).

The standardization of the process and forms once the

decisions to impound/tow has been made does not mini-

mize the risk of arbitrary and discriminatory searches.

“This kind of standardless and unconstrained discre-

tion is the evil the Court has discerned when in previous

cases it has insisted that the discretion of the official in the

field be circumscribed, at least to some extent.” Delaware

v. Prowse, 440 U.S. 648, 661 (1979).

In both Opperman and Lafayette, the decision to inven-

tory was non-discretionary. All abandoned cars were

7 As the state court noted: “Although the procedure followed in this

case was Officially authorized, the officer also had the option of either

sealing the vehicle before it was towed away, or driving the vehicle to

the nearest lot and locking it. The Boulder Police Department regula-

tions and rules do not require that an automobile be inventoried and

searched in accordance with the procedures followed in this case.

People v. Bertine, 706 P.2d at 413.

impounded and inventoried. All arrestee’s personal

belongings were seized and inventoried. Officer Reichen-

bach’s discretion as to the method of implementation in

securing Bertine’s truck taints the “routine” nature of the

subsequent inventory. Delaware v. Prouse, supra; Brown

v. Texas, 443 U.S. 47 (1977).

B. There Is Evidence Of A Pretextual Inventory Search

To Conceal An Investigative Motive.

If there is some showing that a certain inventory was

a su , as where only suspicious items are

scrutinized and the other contents are not removed

and inventoried, the evidence must be suppressed. 2.

W. Lafave, Search and Seizure (1978) aouinatier

LaFave), $5.5, p. 360.

Despite the trial court’s finding to the contrary and the

state court’s rule of nonreviewability of such rulings

against the defendant on an interlocutory appeal, the

Court should be reluctant to formulate standards of

national impact on such a record.

The trial court found that the inventory of the vehicle

was “slip-shod” (J.A. 81). It actually was a “sham.” Nar-

cotic officer Reichenbach’s clear motive was a search for

contraband. As the long-haired, bearded, young Bertine

was driven away to the stationhouse, Reichenbach “just

looked around” the panel truck to see if there was “any-

thing obvious that need[ed] [his] attention.” (R. 43). After

rummaging through the personal papers in the glove com-

partment (but failing to list or remove the electrical con-

verter), his attention turned immediately to the backpack

behind the front seat. (J.A. 24, R. 43). Reichenbach

removed the backpack from the truck and took it back to

his pat.ol car for the thorough inspection. (R. 43). The

trial court found that the “inventory listing items in the

backpack was done much later by someone else.” (J.A.

82). Reichenbach had previous experience with such back-

packs and knew his chances were good of locating con-

traband (J.A. 47). It was only after the complete and

probing search of the containers within the backpack and

the anticipated discovery of contraband that Reichenbach

decided to call the tow truck to justify his inventory (R.

70). The testimony at the suppression hearing was uncon-

tradicted that Reichenback ommitted more items of valu-

able property in the truck than were included on the

impound sheet. (R. 41, 62, 110, 113).

In State v. Gluck, 83 Wash.2d 424, 518 P.2d 703 (1974),

the Court was confrented with just tnis type of inventory.

The evidence was suppressed because the search could

not be justified as an inventory, where the officers aban-

doned the search after finding incriminating evidence and

a complete list of other items in the vehicle was not made.

See also, United States v. Abbott, 584 F.Supp. 442 (W.D.

Pa. 1984); State v. Knight, 621 P.2d 370 (Hawaii 1980).®

The inventory of Bertine’s truck was a procedure of

unreasonable scope that was a pretext concealing an

investigative motive. Opperman at 376. This Court

should not condone it with its approval.

ll. AN AUTOMOBILE INVF*«TORY SEARCH IS NOT AN

EXCEPTION TO THE WARRANT REQUIREMENT

WHICH WOULD ALLOW THE WARRANTLESS

SEARCH OF LUGGAGE OR A CLOSED CONTAINER

FOUND IN AN AUTOMOBILE.

This Court has consistently interpreted the Fourth

Amendment of the United States Constitution to require

8 See, State v. Miller, 420 A.2d 181 (Del. Super. 1980); Jn thz2 Matter

of B.K.C., 413 A.2d 894 (D.C. App. 1980); Miller v. State, 403 So.2d

1307 (Fla. 1981); Manalansan v. State, 45 Md. App. 667. 415 A.2d 308

(1980); People v. Siegel, 95 Mich. App. 594, 291 N.W.2d 134 (1980);

State v. Peterson, 583 S.W.2d 277 (Mo. App. 1979); Thompson v.

State, 83 Wis.2d 134, 265 N.W.2d 467 (1978).

that a search of private property be performed pursuant

to a search warrant. Arkansas v. Sanders, 442 U.S. 753,

758 (1979).

The “warrant requirement” was made fully applicable

to the states by the Fourteenth Amendment to the United

States Censtitution. Jd. at 758 n.4 (citing Mapp v. Ohio,

$67 U.S. 643 (1961); Wolf v. Colorado, 338 U.S. 25 (1949).)

Further, “The exceptions to the rule that a search must

rest upon a search warrant have been jealously and care-

fully drawn.” Jones v. United States, 357 U.S. 498, 499

(1958).

The Fourth Amendment itself states the applicable test

for a const**--**-nal warrantless search to be one of rea-

sonableness: “The right of the people to be secure in their

persons, houses, papers, and effects, against unreasona-

ble searches and seizures, shall not be violated... .”

(emphasis added.) This Court has set out guidelines to

assist in this determination.

The test of reasonableness under the Fourth Amend-

ment is not capable of precise definition or mechan-

ical application. In each case it requires a balancing of

the need for the particular search against the inva-

tion of personal rights that the search entails. Courts

must consider the scope of the particular intrusion,

the manner in which it is conducted, the justification

for initiating it, and the place in which it is conducted.

Bell v. Wolfish, 441 U.S. 520, 559 (1979). This test has

been generalized to be a balancing of the individual's

privacy interest against the governmental interests in

pursuing the search.

The State of Colorado asserts that an inventory search

of an automobile by the government is a reasonable excep-

tion to the Fourth Amendment warrant requirement. The

State further asserts that this should allow the war-

rantless search of luggage or a closed container found

inside a properly seized automobile.

A. A Search Of Luggage Is Not An Exception To The

Warrant Requirement Even When Such Luggage Is

Found In An Automobile.

Persons possessing luggage are protected against war-

rantless searches of this property even when such lug-

gage is found in an automobile. This right exists in spite of

the “automobile exception” and is due to the owner's

expectation of privacy in the luggage. Arkansas v. Sand-

ers, 442 U.S. 753 (1979); United States v. Chadwick, 443

U.S. 1 (1977).

Courts have sustained the constitutionality of war-

rantless searches of automobiles under the “automobile

exception” to the warrant requirement. Chambers v.

Maroney, 399 U.S. 42 (1970); Carroll v. United States,

267 U.S. 132 (1925).

Such an exception exists due to the nature of auto-

mobiles. Automobiles are mobile and always requiring a

warrant for a search might be impracticable. South

Dakota v. Opperman, 428 U.S. 364, 367 (1976) (citing

Carrol v. United States, 267 U.S. 132 (1925)); Coolidge v.

New Hampshire, 403 U.S. 443 (1971). Further, an auto-

mobile has a diminished expectation of privacy due to the

pervasive governmental regulation, inspection, and possi-

ble caretaking of automobiles. Jd. at 368. Automobile

travel is also public.

One has a lesser ion of privacy in a motor

vehicle because its ion is transportation and it

seldom serves as one’s residence or as the repository

of peisonal effects. A car has little car acity for escap-

ing public scrutiny. It travels public thoroughfares

where both its occupants and its contents are in plain

view.

Cardwell v. Lewis, 417 U.S. 583, 590 (1974). The mere

fact, however, that luggage is found within an automobile

does not render the luggage subject to a warrantless

search under the automobile exception. Sanders, 442

U.S. at 753.

In Sanders, police received reliable information that

the defendant would be carrying contraband in a green

suitcase when he arrived at the airport. The defendant

did appear carrying the described suitcase. He placed the

Suitcase in a taxi and then drove off. The pvlice then

stopped the taxi and made a warrantless search of the

suitcase. Marijuana was found inside. Jd. at 755.

On appeal to the Arkansas Supreme Court the evidence

seized in the search of the suitcase was suppressed. This

Court affirmed, stating that it would not allow the search

of luggage merely because it was found in an automobile.

“Accordingly, as a general rule, there is no greater need

for warrantless searches of luggage taken from auto-

mobiles than of luggage taken from other places.” Jd. at

764.

Sanders heavily relied on the findings in the case of

United States v. Chadwick 433 U.S. 1 (1977). In Chad-

wick, the reasons for constitutional warrantless searches

of cars were compared to that of luggage. The Courts held

that luggage is a repository for personal effects, and

unlike a car, persons possessing luggage are protected

against a warrantless search. /d.

Chadwick involved the warrantless search of a foot-

locker which had been placed in the truck of a car. The

police had probable cause to believe that the footlocker

contained contraband. This Court upheld the suppression

of the contraband seized in the search, and rejected the

reasoning that a search of luggage was like that of a car.

Luggage does not have the same mobility as a car:

Nor does the footlocker’s mobility justify dispensing

with the added protections of the Warrant Clause.

Once the federal agents had seized it at the railroad

station . . . there was not the slightest danger that

the footlocker or its contents could have been

removed before a valid search warrant could be

obtained.

Chadwick at 13.

More important to the Court was the fact that luggage

is private.

She Salas ence Come the privacy aspects of an

Ss do not appl y. to respondent's footlocker

.... Unlike an automo ile, whose primary function

is FBR a is intended as a repository

of personal effects. In sum, a person's expectations of

privacy in personal are substantially greater

than in an automobile. /d.

From the preceding decisions it is clear that luggage

cannot be searched under the automobile exception or by

reasoning that luggage is analogous te an automobile. At

the very least, a backpack, such as the one possessed by

Mr. Bertine, is a repository of personal effects and fits the

analysis under Chadwick and Sanders.

Therefore, in the case at bar, Mr. Bertine’s backpack,

sitting behind the seat when the police officer found it,

was subject to the rules that had been set out in Chadwick

and Sanders. Namely, that Mr. Bertine was protected

against a warrantless search subject to the automobile

exception, and that his expectation of privacy concerning

the contents of his backpack was not diminished.

In order to search Mr. Bertine’s backpack another

exzeption that applies must be found. “Thus, insofar as

the police are entitled to search such luggage without a

warrant, their actions must be justified under some

exception to the warrant requirement other than that

applicable to automobiles stopped on the highway.” Sand-

ers, 442 U.S. at 766. See also, United States v. Place, 462

U.S. 696, 706-707 (1983) (privacy interest in contents of

personal luggage).

Even where exceptions to the warrant requirement

have allowed warrantless searches of closed containers

found in automobiles, a preliminary showing of probable

cause has still been required. New York v. Belton, 453

U.S. 454 (1981) (search incident to a lawful probable cause

arrest of the occupant of an automobile may extend to the

contents of any containers found within the passenger

compartment of the car); United States v. Ross, 456 U.S.

798 (1982) (probable cause to search an automobile allows

search of any containers found therein). The recent cases

of this Court involving searches of containers in auto-

mobiles thus indicate that containers found in an auto-

mobile may be searched only upon a prior determination

of probable cause, either as to the container itself or as to

the automobile within which it is located; and unless a

recognized exception to the warrant requirement exists,

either for searching the container or the car, a warrant

must be obtained to search the container.

Thus, while a reasonable automobile inventory search

pursuant to established procedures is permissible, the

search of any closed containers found therein must be

based upon a prior determination of probable cause, and,

absent a recognized exception to the warrant require-

ment, only upon issuance of a warrant.

Ill. THE INVENTORY SEARCH OF BERTINE’S BACK-

PACK WAS UNREASONABLE BECAUSE BERTINE

HAD A HIGH EXPECTATION OF PRIVACY IN THE

CONTENTS OF THE BAG AND THERE WAS NO

NEED FOR THE POLICE TO SEARCH INSIDE IT.

The inventory “search”? of the contents of Steven Ber-

tine’s backpack cannot withstand scrutiny under the

Fourth Amendment standard of reasonableness—the

standard which inventory searches must meet. South

Dakota v. Opperman, 428 U.S. 364 (1976). Essentially,

the test for determining reasonableness involves a balanc-

ing of the interests advanced to justify the intrusion

against the interest of the individual in the privacy of his

effects. Camara v. Municipal Court, 387 U.S. 523-37

(1967); Opperman, 428 U.S. at 377-78 (Powell, J., con-

curring). In applying this test this Court should examine

“all the facts and circumstances of this case in light of the

principles set forth in . . . prior decisions.” 428 U.S. at

375.

A. Opperman Did Not Authorize Inventory Searches Of

The Contents Of Repositories Of Personal Effects,

Such As Luggage, In Which There Is A High Expecta-

tion Of Privacy.

The Court in Opperman found that the inventory

search of the contents of a glove compartment in an auto-

® Whether or not an inventory constitutes a “search” for Fourth

Amendment purposes would not appear to be a critical question in

this case since the state has never argued that the inventory was

exempt from the Fourth Amendment standard of reasonableness.

South Dakota v. Opperman, 428 U.S. 364, 371 n.6 (1976). In any

event, Bertine’s position is that an inventory does constitute a search.

See South Dakota v. Opperman, 428 U.S. at 377 n.1 (Powell, J.,

concurring); 428 U.S. at 385 n.2 (Marshall, J., dissenting). See also 2

W. LaFave, Search and Seizure §5.3, at 306 & n.23 (1978). The

petitioner's and government's briefs concede as much.

mobile which had been lawfully impounded met the rea-

sonableness standard. It must be emphasized, however,

that the instant case involves an suvanheny of a different

nature: a search of luggage.

There are fundamental distinctions between auto-

mobile and luggage inventories. The expectation of pri-

vacy in the contents of luggage, a repository for personal

effects, is substantially higher than that in an automobile.

As was noted by Justice Powell in a concurring opinion in

Rakes v. Illinois, 439 U.S. 128, 153-54 (1978): “Nothing is

better established in Fourth Amendment jurisprudence

than the distinction between one’s expectation of privacy

in an automobile and one’s expectation when in other

locations.” Moreover, as this Court has recognized, the

expectation of privacy in repositories accompanying or

being carried by a person at the time of arrest is not

reduced by virtue of an arrest. United States v. Chad-

wick, 433 U.S. 1, 16n.10 (1977); Arkansas v. Sanders, 442

U.S. 753, 766-67 (1979) (Burger, C.J., concurring).

Not only are the privacy interests distinct, but the need

to conduct a search in each type of inventory is different.

Unlike the significant burdens and specific problems

involved in the caretaking of automobiles, which make an

inventory search occasionally necessary, no comparable

burdens or problems are involved in safeguarding

repositories of personal effects such as backpacks.

Arkansas v. Sanders, 442 U.S. at 765 n.14. Accordingly,

there is no need to conduct an inventory of the contents of

luggage that can be safely stored.

A close look at Opperman demonstrates that its holding

is limited to its facts and does not authorize the search of

repositories of personal effects. In Opperman, the Cuurt

concluded that routine inventory searches of the contents

of lawfully impounded abandoned automobiles were rea-

sonable. Interests recognized to justify such intrusions

included: (1) protection of the owner’s property while it

remains in police custody; (2) protection of the police

against claims or disputes over lost or stolen property;

and (3) protection of the police from potential danger. 1°

428 U.S. at 369. These interests favoring intrusion were

found to outweigh the citizen’s interest in the privacy of

the contents of his automobile, particularly since that

privacy interest was recognized to be significantly less

than the expectation of privacy associated with one’s

home. The Court noted that the practice of inventorying

the contents of an automobile had been almost uniformly

found by the states to be “essential to respond to incidents

of theft or vandalism.” 428 U.S. at 369.

With respect to the record before it in Opperman, the

Court upheld the routine inventory search of the contents

of a glove compartment. The Court noted that the car had

been legally impounded, the owner was not present to

make other arrangements for the safekeeping of his

belongings, and the routine inventory was prompted by

the presence in plain view of certain valuables. 428 U.S. at

375.

The Court also found, in footnote teri, that “[t]he inven-

tory was not unreasonable in scope.” 428 U.S. at 376 n.10.

The principle implicit in this footnote, that the scope of an

inventory search is not unlimited, was addressed as well

in the concurring and dissenting opinions. Justice Powell,

in a concurring opinion, observed that the Court’s holding

10 The Court also noted the frequent need to determine whether a

vehicle had been stolen and thereafter abandoned. 428 U.S. at 369.

This interest does not apply to the inventory of an arrestee’s effects

an’ is not presented on the facts or claimed by the state.

provided no general license of the police to examine all the

contents of automobiles, such as letters or checkbooks.

428 U.S. at 380 & n.7. Justice Marshall, in a dissenting

opinion, agreed with Justice Powell’s observation and

noted that the Court’s opinion did not authorize the search

of containers which could be sealed, removed and secured

without further intrusion. 428 U.S. at 388 n.6. Consistent

with these statemenis, a large number of courts which

have addressed the question have concluded that an

inventory search of luggage and other removable con-

tainers in a vehicle is unreasonable in scope. !!

Opperman thus does not authorize the search of con-

tents of repositories such as backpacks.

11 United States v. Wilson, 636 F.2d 116 (8th Cir. 1980); United

States v. Bloomfield, 594 F.2d 1200 (8th Cir. 1979); State v. Prober, 98

Wis.2d 345, 297 N.W.2d 1, 7 (1980); United States v. Vallieres, 443

F.Supp. 186, 191(D.Conn. 1977); State v. Pace, 171 N.J. Super. 240, 408

A.2d 808, 813 (1979); State v. Howser, 95 Wash.2d 143, 622 P.2d 1218,

1226-28 (1980); State v. Downes, 285 Or. 369, 591 P.2d 1352 (1979); State

v. Bramlett, 94 N.M. 263, 609 P.2d 345, 347-48 (Ct.App. 1980);

Obermeyer v. State, 97 Nev. 158, 625 P.2d 95, 96-97 (1981); Manalan-

san v. State, 48 Md. App. 667, 415 A.2d 308 (1980); Smith v. Stace, 48

Md. App. 425, 427 A.2d 1064, 1065 (1981); People v. Grana, 185 Colo.

126, 527 P.2d 548, 545 (1974); State v. Keller, 265 Or. 622, 510 P.2d 568,

570 (1973); State v. McDougal, 68 Wis.2d 339, 228 N.W.2d 671, 678

(1975); State v. Gwinn, 301 A.2d 291, 294 (Del. 1972); People v. Coun-

terman, 192 Colo. 152, 556 P.2d 481, 485 (1976); People v. Miller, 110

Mich. App. 270, 312 N. W.2d 225, 228 (1981); State v. Roth, 305 N.W.2d

501 (Iowa 1981), cert. denied, 454 U.S. 870 (1981); People v. Bayles, 82

Ill. 2d 128, 411 N.E.2d 1346, 1352 (1980), cert. denied, 453 U.S. 923

(1981); State v. Morgan, 3 Kan. App.2d 667, 671, 600 P.2d 155, 159

(1979); State v. Potter, 8 Kan. App.2d 52, 648 P.2d 1162, 1165 (1982);

People v. Salter, 91 Ill. App.3d 831, 414 N.E.2d 1252, 1255 (1980); State

v. Danie!, 589 P.2d 408, 417 (Alas. 1979).

B. Opperman’s Holding That An Inventory Search Of An

Automobile Was Reasonable Should Not Be Extended

To Validate An Inventory Of The Contents Of Lug-

gage.

Numerous courts which have considered a search of the

contents of an arrestee’s repositories of personal effects

have found it to be beyond the scope of a permissible

inventory.!2 These courts find that there is virtually no

need to search the contents of the containers since they

can simply be sealed, secured and inventoried as a unit.

This caretaking procedure is found to be workable and

reasonable by these courts.

The state, nevertheless, urges this Court to extend

Opperman’s holding to searches of the contents of lug-

gage and other repositories. The various interests that

are advocated by the state as grounds for conducting an

inventory search of the contents of a repository for per-

sonal effects such as a backpack are (1) protection of the

owner's property while it remains in police custody; (2)

protection of the police against claims or disputes over lost

or stolen property; (3) the need to prevent harm to the

police; and (4) the need to ascertain or verify identify.

12 United States v. Monclavo-Cruz, 662 F.2d 1285, 1288-90 (9th Cir.

1981); United States v. Schleis, 582 F.2d 1166, 1172-73 (8th Cir. 1978);

United States v. Cooper, 428 F.Supp. 652, 654-55 (S.D. Ohio), aff'd,

564 F.2d 100 (6th Cir. 1977); United States v. Davis, 501 F.Supp. 23, 26

(N.D. Ga. 1980), aff'd, 647 F.2d 1119 (5th Cir. 1981); State v. Kaluna, 55

Haw. 361, 520 P.2d 51, 60-62 (1974); Reeves v. State, 599 P.2d 727,

735-36 (Alas. 1979); Bradford v. State, 401 N.E.2d 77, 80 (Ind. App.

1980); People v. Helm, 89 Ill.2d 34, 431 N.E.2d 1033, 1034-35 (1981);

Hicks v. State, 398 So.2d 1008, 1010 (Dist. Ct. App. F'la. 1981). See also

United States v. Mills, 472 F.2d 1231, 1240-41 (D.C. Cir. 1972); People

v. Hamilton, 74 Ill.2d 457, 386 N.E.2d 53 (1979).

There is virtually no need, however, for the police to

search inside luggage in order to advance these interests.

Sealing, securing, and inventorying the bag as a unit

achieves the first three interests and the fourth interest—

the need to verify identify—in most cases will be

advanced by simply asking the arrestee to produce identi-

fication as was done in this case.

1. Sealing, Securing And Inventorying A Backpack As

A Unit Safeguards The Property, Protects The Police

From False Claims, And Protects Police From Dan-

gerous Instrumentalities.

The interests generally recognized to justify an inven-

tory—protection of the owner's property, protection

against laims of lost or stolen property, and police

safety—are served be sealing, securing, and inventorying

the property as a unit. In the first place, sealing, securing

and inventorying a container as a unit, without inventory-

ing its contents, safeguards the police from claims or

disputes over lost or stolen property. The police are actu-

ally less likely to be accused of theft or loss of the contents

if the container “has never been opened and its contents

have never been removed, reshuffled anc replaced.”

United States v. Bloomfield, 594 F.2d 1200, 1202 (8th Cir.

1979). As Professor LaFave has noted:

“False claims cannot be avoided and seem more likely

when the contents are handled anc inventoried (a

time when, the owner might later claim, some of his

property was taken), as compared to when the con-

tainer is immediately sealed.” 2 W. LaFave, Search

and Seizure § 5.5, at 360 n.50 (1978). See Opperman,

428 U.S. at 378-79 (Powell, J., concurring); 428 U.S.

at 391 (Marshall, Jr., dissenting).

Furthermore, safeguarding property as a unit places no

burden on the police. In the first place, the police already

perform similar functions, such as that associated with

the caretaking of evidence. Secondly, simply listing “one

backpack” on an inventory sheet is less burdensome than

listing the pack as well as its contents. See United States

v. Hill, 458 F.Supp. 31, 37 (D.D.C. 1978).

Many of the courts addressing this « uestion thus recog-

nize, as did the state court in this case, that securing

containers of personal effects as a unit is better than

inventorying the contents of the container. !* Indeed, as

the state court in this case found, there was no need to

search inside Bertine’s backpack because there was a

secure impound lot available. The backpack could also

have been secured in the police evidence room. !4

Moreover, protecting the police from potential booby-

traps and explosives would be better accomplished by

18 See, e.g., United States v. Monclavo-Cruz, 662 F.2d 1285, 1289

(9th Cir. 1981); State v. Gwinn, 301 A.2d 291, 294 (De. 1972); People v.

Helm, 89 Ill.2d 34, 431 N.E.2d 1033, 1035 (1981); State v. McDougal,

68 Wis.2d 399, 228 N.W.2d 671, 678 (1975). See also 2. W. LaFave,

Search and Seizure § 7.4, at 571-72 (1978); Comment, 1968 U. Ill. L.F.

401, 407-08.

‘4 The Government in its amicus brief cites United States v. Mar-

tinez-Fuerte, 428 U.S. 543, 557 n.12 (1976), and Cady v. Dombrowski,

413 U.S. 432, 447, and argues that the reasonableness of an inventory

does not depend on whether the police interests in making the

intrusion can be accomplished by less intrusive means, such as secur-

ing the repository as a unit. A careful reading of the cited case shows

that the Court was referring to less intrusive means which were

unreasonable by virtue of their prohibitive cost or the heavy burden

they would involve. This is the precise point recognized in Opperman,

i.e., that the less intrusive alternative of posting a security guard at

the car-impound lot would be prohibitively expensive. 428 U.S. at 379

(Powell, J., concurring). “No comparable burdens are likely to exist

with respect to the seizure of personal luggage.” Arkansas v. Sand-

ers, 442 U.S. at 765 n.14.

securing the container as a unit. As one court has noted, it

would be foolhardy to blindly and routinely search every

container for explosives and booby-traps. United States v.

Cooper, 428 F.Supp. 652, 655 (S.D. Ohio 1977). See

LaFave, $5.5, at 360 n.50 (1978); see also Illinois v.

Lafayette, 462 U.S. 640, 649 (Marshall, J., concurring);

Cf. United States v. Chadwick, 433 U.S. 1, 15 (1977); id.,

at 17, and n.2 (Brennen, J., concurring).

This is not to say that all repositories being inventoried

may never be searched to check for explosive devices or

dangerous instrumentalitics. If the police have reason to

believe that a certain repusitory contains some imme-

diately dangerous instrumentality, then it should be

searched in a professional manner. United States v. Chad-

wick, 433 U.S. 1, 15 r.9 (1977).

This case, however, does not contain any exigent cir-

cumstances. Bertine was arrested for driving under the

influence. The arresting officer was not in any fear of his

safety and did not find it necessary to even conduct a pat-

down search of Bertine.

Accordingly, a search inside the backpack was not

needed to safeguard the property, protect the police from

false claims, or dangerous instrumentalities since the

officer could have simply inventoried the backpack as a

unit, sealed it, and secured it in the van or in the poice

evidence room.

2. Other Considerations In This Case, Including The

Absence Of Consent To Search, Military Against

Upholding The Stationhouse Inventory.

Additional factors in this case support a finding of

unreasonableness. For example, the inventory was con-

ducted witho1t Bertine’s consent and he was not advised

of the purpose of the inventery. Moreover, he apparently

was not given an opportunity to make other arrange-

ments for the safekeeping of his truck and belongings.

Furthermore, since Bertine was arrested for a traffic

offense, the police would very likely have retained

custody of his belongings for only 2 short period of time

until he was able to post a bond. See United States v.

Davis, 501 F.Supp. 23, 26 (N.D. Ga. 1980), aff'd, 647 F.2d

1119 (5th Cir. 1981). Even after being arrested for posses-

sion of controlled substances, Bertine was released the

next afternoon (R. 111).

All of these factors show the search v as unreasonable.

Certainly, it would have been consist2nt with Fourth

Amendment principles to seek Bertine’s consent, and

provide him an opportunity to have someone retrieve his

truck ana belongings.!5 Lower courts recognize that

these factors merit great. weight and find inventory

searches to be unreasonable where the arrestee was not

asked for consent or given an opportunity to make other

arrangements for the caretaking of his belongs. !6

15 The need for the owner's consent was advocated by the dissent in

Opperman, but rejected in the opinion of the Court since the lack of

consent apparen‘ly would not protect the police from claims of lost of

stolen property or protect the public from vandals who might obtain a

firearm. 428 U.S. at 376.n.10. Unlike automobiles, the backpack can

be secured within the confines of the station cr a secured storage area

and protected from theft, loss and vandals. The consent theory

advanced by the dissent in Opperman thus merits ~enewed consider-

ation, unde~ the facts of this case.

16 See, e.g., Zehrung v. State, 569 P.2d 189, 193 (Alas. 1977), modi-

fied, 573 P.2d 858 (1978); United States v. Wilson, 636 F.2d 1161, 1165

(8th Cir. 1980); State v. Killerease, 379 So.2d 737 (La. 1930); State v.

Hatfield, 364 So.2d 578 (La. 1978); State v. Schmidt, 359 So.2d 133

(La. 1978); State v. Mangold, 82 N.J. 575, 414 A.2d 1312 (1980); Gaston

v. State, 155 Ga. App. 337, 270 S.E.2d 877 (1980); State v. Southwell,

369 So.2d 371 (Dist. Ct. App. Fla. 1979). See also, 2 W. LaFave,

Search and Seizure $7.4, at 571 (1978) (T“(Tjhere is much to be said in

In sum, the state’s position that Opperman’s holding is

controlling in this case should be rejected. As Bertine has

shown, he had a high privacy interest in the contents of his

backpack. Moreover, in contrast to the essential need to

conduct automobile inventories, the police had no need to

search inside his backpack in order to achieve inventory

objectives. The state’s position ignores the fundamental

distinctions that exist between these two types of invento-

ries. Its argument that Opperman’s holding should

extend to this case because the search was an “inventory”

conducted pursuant to “routine procedure” essentially

amounts *» an indiscriminate use of labels to avuid a

serious constitutional question. Justice Cardozo

described this use of labels as follows:

“A fertile source of perversion in constitutional the-

ay h Coes < ee . . [A] court frames a

e which is general in form, though it has been

wrought under the pressure of particular situations.

Forthwith another situation is p'aced under the rule

because it is fitted to the wc-us, though related

faintly, if at all, to the reasons that brought the rule

into existence.” Snyder v. Massachusetts, 291 U.S.

97, 114 (1933).

Because Bertine’s privacy interest outweighed the need

for the intrusion, the search was unreasonable. Con-

sequently, the judgment of the state court should be

affirmed.

favor of the proposition vaat the police should [condmct an] inventory

.. . when the owner. . . is at hand only if he elects that alternative.”)

See also, United States v. Wilson, 636 F.2d 1161 (8th Cir. 1980);

State v. Jewell, 338 S.21 633 (La. 1976); State v. Mangold, 82 N.J.

575, 414 A.2d 1312 (1980); State v. Goff, 272 W.Va. ___ 272 S.E.2d

457 (1980); State v. McDougal, 68 Wis.2d 399, 228 N. W.2d 671 (1975).

IV. THE INVENTORY SEARCH UPHELD IN ILLINOIS

V. LAFAYETTE WAS A PREINCARCERATION,

STATIONHOUSE INVENTORY SEARCH AND IS

INAPPLICABLE TO THE SEARCH OF A CLOSED

CONTAINER FOUND IN AN AUTOMOBILE.

The holding of Illinois v. Lafayette, 462 U.S. 640 (1983)

is quite specific and limited in scope. “We hold that it is not

‘unreasonable’ for police us part of the routine procedure

incident to incarcerating an arrested person, to search

any container or article in his possession, in accordance

with established inventory procedures.” Jd. at 648. In

such situations the invencory search is restricted to

searching the items in the possession of an arrested per-

son while in the stationhouse. The Court was so com-

mitted to the limited scope of this decision that it followed

the above holding with the following footnote. “The record

is unclear as to whether respondent was to have been

incarcerated after being booked for disturbing the peace.

This is an appropriate inquiry on remand.” Jd. at 648, n.3.

Therefore, if on remand it was determined that respond-

ent was not to have been incarcerated, then the search

would not have been incident to incarceration and thus

unreasonable and invalid.

To the extent that Lafayette has any bearing on the

present case at all, it is that the Court reaffirms its com-

mitment to the balancing of an individual's privacy inter-

ests versus government interests. Jd. at 2608. In the

stationhouse, however, the Court applies this test by not-

ing additional fundamental exigencies in the govern-

ment’s interests. Here, the Court acknowledged a more

compelling governmental interest in the stationhouse.

“Arrested persons have also been kn~wn to injure them-

selves—or others—with belts, knives, drugs, or other

items on their person while being detained. Dangerous

instrumentalities—such as razor blades, bombs, or weap-

ons—can be concealed in innocent looking articles taken

from the arrestee’s possession.” Jd. at 646. The need to

protect against such risks arises independently of even

the particular officer’s subjective concerns at the moment

of the search. Jd.

In fact, the Court went as far as to say that “the govern-

mental interests underlying a stationhouse search of the

arrestee’s person and possessions may in some circum-

stances be even greater than those supporting a search

immediately following arrest. Jd. at 545. With the govern-

mental interests so strong in a stationhouse setting, it is

unlikely that the individual’s limited expectation of pri-

vacy would ever be great enough to outweigh them; the

one possible exception being a strip search, on which the

court did not rule. Jd. at 645.17

The petitioner's argument that the holding of Lafayette

controls in the field inventory context is based on the

fallacious conclusion that there are “identical” interests in

each situation. This assumption ignores the fundamental

principle underlying Lafayette—“the evolution of inter-

ests along the continuum from arrest to incarceration.”

462 U.S. at 644.

The scope of the stationhouse search will invariably be

more intrusive that that conducted in the field. The

exigencies of the context demand it. Conversely, the field

inventory search, conducted long after the arrestee has

been safely removed from the scene should be much /ess

intrusive. The governmental interests are minimal. !®

17 The holding in Lafayette does not rely on the search incident to

arrest exception to the warrant requirement as Justice Marshall's

concurring opinion points out. Jd. at 2611 (Marshall, J., concurring).

18 Nor should the Court adopt an “accelerated” inventory search

rationale to justify the search of luggage found at the scene of an

arrest. People v. Laiwa, 34 Cal.3d 711, 669 P.2d 1278 (1983).

The petitioner assumes that Lafayette has eliminated

any necessity of further balancing of the contending inter-

ests in different inventory contexts. The resulting equa-

tion of the jailhouse inventory with all other types of

inventories is blind to the complexity of life within which

the Fourth Amendment exists.

The petitioner also argues that the “reasonableness” of

Reichenbach’s conduct needs no further analysis than

that it was permitted under a departmental regulation.

The review of the reasonableness of that vague rule allow-

ing “a detailed vehicle inspection and inventory” (J.A. 90)

is not to be allowed because to do so would be to “second

guess” the police department. Lafayette at 648. Thus, the

petitioner argues for the Court to simply abdicate its

responsibility to enforce the “ourth Amendment by con-

ferring unreviewable authority on the police. See Note,

Illinois v. Lafayette: has the Fourth Amendment Van-

ished in the Face of Administrative Expediency? 21

Cal. W.L. Rev. 218 (1984).

As the state court correctly states:

[U]nconstitutional searches cannot be constitu-

tionalized by standardizing them as part of normal

omy practice. Even though routine procedures

ve been followed, courts should not blind them-

selves to police practices that sanction an unlimited

intrusion into areas where an individual nog | pos-

sesses a reasonable expectation of privacy. Simply

put, the rights secured by the fourth amendment

cannot be elimi by administrative fiat. (citation

omitted.) Bertine, 706 P.2d at 419.

This Court’s reluctance to become embroiled in admin-

istrative procedures ensuring the safety of a jailhouse or a

prison should not require abandonment of vigilance for

reasonable expectations of privacy in society as a whole.

V. THE SINGLE FAMILIAR STANDARD FOR THE

FIELD INVENTORY OF CONTAINERS SHOULD BE

NARROWLY DRAWN TO PROTECT SUBSTANTIAL

EXPECTATIONS OF PRIVACY.

It may “be unreasonable to expect police officers in the

everyday course of business to make fine and subtle dis-

tinctions in deciding which containers of items may be. . .

sealed as a unit” in certain contexts. Lafayette at 648.

Certainly in situations such as the potentially volatile

booking search within the stationhouse security setting,

Illinois v. Lafayette, 462 U.S. at 648; the probable cause

search of a mobile vehicle, United States v. Ross, 456 U.S.

798, 821 (1982); the search incident to arrest in inherently

dangerous, rapidly unfolding street arrest, Dunaway v.

New York, 442 U.S. 200, 213-14 (1979), the need for

“bright lines” and “single familiar standards” are para-

mount so that it is “possible to reach a correct determina-

tion beforehand as to whether an invasion of privacy is

justified in the interest of law enforcement.” Belton at

458.

The “continuum of interests” demands a different analy-

sis in the non-exigent context of the routine field inven-

tory search. The impound officer can be expected to exer-

cise a reasonable, ad hoc judgment with respect to the

containers, luggage and other repositories of highly per-

sonal effects which he may encounter. This is not to say

that the Court should not attempt to formulate some

standard which is respectful of the substantial expecta-

tion of privacy in personal effects protected by the fouth

amendment. The “Bertine” rule advocated by the United

States Solicitor and the petitioner intrudes too far into

these protected interests. Governmental expediency

should not allow the “inventory” to become the talisman

before which the Fourth Amendment disappears. There

are risks in formulating constitutional rules broader than

required by the facts to which they are applied. Arkansas

v. Sanders, 442 U.S. 753, 766 (Burger, Jr., concurring).

The opening and search of “all containers taken from

arrestees and containers found in their vehicles” will

create a rule far broader than that of Belton or Ross. The

privacy expectation of the innocent accident victim whose

car or luggage falls into police custody will be less than

that of the Chadwick drug smuggler, the Belton arrestee,

or the Ross criminal automobile owner. The carefully

hewn parameters of the valid warrantless search of con-

tainers will be cast aside before the demands of admin-

istrative procedures. See Wagner v. Higgins, 754 F.2d

186, 190 (6th Cir. 1985).

Professor LaFave, one of the fathers of the “bright line”

rules, !® now laments the over-expansive Belton-type rule

suggested by the petitioner hure as:

[N]o less than an invitation to subterfuge, for police

wishing to search a car but lacking grounds to do so

need only await the commission of some minor

offense by the driver or other occupant and then

arrest re the search.?°

Indeed, the suggested Bertine rule of inventory search of

closed containers will permit container searches in the

trunk of the vehicle not permitted even under Belton, and

of containers excluded under the probable cause standard

of Ross.

The court must be cognizant of the impact of such an

inventory exception in other areas of fourth amendment

19 LaFave, “Case-by-Case Adjudication” versus “Standardized

Procedures”: The Robinson Dilemma, 1974 S.Ct. Rev. 127, 142.

20 LaFave and Isreal, Criminal Procedure, Vol. 1, 276 (1984).

analysis. The emerging “inevitable discovery” rule of Nix

v. Williams, 467 U.S. 431 (1984) has resulted in approval

of otherwise unlawful searches incident to arrest based on

the inevitable discovery of the evidence through a routine

inventory search. See, e.g., United States v. Andrade, 784

F.2d 1431 (9th Cir. 1986). This convergence of exceptions

to fourth amendment protcctions has prompted at least

one circuit judge to mark “the passing of still another

important part of the protection of the Fourth Amend-

ment,” and the resulting encouragement of illegal and

unconstitutional searches. Jd. at 1433-34. (Reinhardt,

C.J., concurring. )

In New York v. Class, ___ U.S. ___.,, 106 S. Ct. 960, 969

(1986), the petitioner, State of New York, argued the

convergence of Opperman, supra, and Niz v. Williams,

supra, as an alternative theory justifying the police

search of a vehicle incident to an arrest. The Court did not

reach those issues in its opinion.

More frightening is the fact that federal courts have

already been confronted by prosecutorial arguments

legitimizing warrantless searches of homes or hotel rooms

on the inventory exception rationale. See United States v.

Ladson, 774 F.2d 436 (11th Cir. 1985); United States v.

Parr, 716 F.2d 796 11th Cir. (1983) (fireman protective

search for valuables); United States v. Lyons, 706 F.2d

321 (D.C. Cir. 1983) (hotel room “inventory” after arrest

of occupant).

The Court should not strike so deeply at cherished

expectations of privacy. There is little justification and no

necessity for such a sweeping rule. Respondent would

suggest a compromise between the conflicting interests

based upon the rule of Robbins v. California, 453 U.S. 420

(1981). The rule would state that:

A closed piece of luggage or other closed container

which is subject to a lawful inventory procedure is

er Pe by the fourth amendment

and shall not nless its contents are in

plain view or are ‘seanenebly believed to be dan-

Cres. Otherwise, it shall be. inventoried as a unit.

This “single familiar standard” is capable of general

application by police officers engaged in the non-exigent

routine caretaking function of a standardized inventory

procedure without fostering subterfuge and pretextual

police conduct. The individual’s reasonable expectations

of privacy in his personal effects will be adequately pro-

tected while not significantly impacting the legitimate

governmental interests in a property inventory. The right

to be free from unreasonable searches and seizures should

not be reduced to the size of the smallest pear! or gem that

one might possess.

CONCLUSION

Under the unique facts of this case, the decision of the

Colorado Supreme Court invalidating the inventory

searca of luggage and closed containers was correct. The

judgment of the lower court should be affirmed. The opin-

ion of the Court should explain that the inventory search

in this case violated the fourth amendment inasmuch as it

was undertaken without consultation with and approval

by Steven Lee Bertine and the scope of the inventory

went beyond those items which were reasonably believed

to be dangerous or were in plain view.

Respectfully submitted,

Davip F. VELA,

THOMAS M. VAN CLEAVE, III

Cary C. LACKLEN

Counsel of Record for Respondent

Deputy State Public Defender

207 Canyon Blvd., #201B

Boulder, CO 80302

(303) 444-2322

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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.