State v. Jewell

The crucial issue of this appeal concerns the alleged validity of a warrantless “inventory search” of the automobile of the defendant, who was under custodial arrest. The alleged purpose of the inventory search was to safeguard the property of the accused for which the law enforcement agency might be accountable, since its officers were taking possession of the vehicle and removing it from the scene as a consequence of its driver’s arrest.

The defendant Jewell was convicted with possession of an illegal drug, phencyclidine (PCP), La.R.S. 40-968, and sentenced to supervised probation for three years. The sole issue raised by his appeal is that the PCP was unconstitutionally seized and that the trial court erred in denying the defendant’s motion to suppress the state’s use of this evidence.

Context Facts

The defendant Jewell was initially arrested for obstructing the highway:

While patrolling at 2:45 a. m., two police officers came upon the defendant’s automobile parked so as to protrude across the center of a narrow two-lane street in a quiet residential neighborhood. (As a result, another vehicle was required to drive onto the narrow shoulder to pass the parked car.) The motor was running, the headlights were off, and the defendant was sleeping or passed out in the driver’s seat, head slumped over.

The officers were able to arouse the defendant by shaking him, after knocking on the window had failed to do so. When the defendant alighted from the vehicle, he was given the Miranda warnings and informed that he was arrested and would be booked for obstructing the highway.

In a search of his person following this custodial arrest, an aluminum foil package was found in his shirt pocket, which contained a green substance suspected to be hashish, a form of marijuana. The defendant was informed that he was also under arrest for this offense. (The seizure of the hashish is not an issue upon this appeal.)

For purposes of the present appeal, we find no reason to reject the state’s argument that the police officers followed normal and customary practice in making a custodial arrest for obstruction of the highway under the circumstances here presented, including the possible or probable intoxication of the obstructing vehicle’s driver. The custodial arrest based on probable cause thus authorized the warrantless search of the arrestee himself, because of the exigent necessity of assuring the absence of weapons on his person., See State v. Breaux, 329 So.2d 696 (La.1976).

Further, due to the intoxicated condition of the arrested driver, the determination of the arresting police officers was not unreasonable to arrange to take custody of the vehicle for purposes of removing it from the scene. We are not here faced with a situation where, because of a traffic offense, the arresting officers plan to “impound” a vehicle, despite the fact that there is no necessity to do so, in order to search it. (The issue remains whether the vehicle was at the time of the search legally “impounded” for purposes of a permissible inventory.)

In accord with their decision to take custody of the vehicle, one of the officers proceeded on the spot to make what he denoted as an “inventory search” of the vehicle (of which more later, see II below). In the course of this search, he discovered a small excedrin (like aspirin) bottle in the open ashtray.

The bottle contained about seven pills or capsules, none of which are shown to be illegal, and a piece of plastic. The latter contained a minute amount of a white powdered substance which, upon laboratory analysis, proved to be PCP. (The defendant’s appeal is from his conviction of possession of the latter.)

We thus reach the issues posed to us by the present appeal: (I) Does a warrantless search of an automobile for “inventory” purposes violate our state constitution’s prohibition against unreasonable searches and seizures by agents of governmental power?; and (II) if not, is the present search nevertheless unjustified as beyond the contemplated scope of an inventory search?

I.

Our state constitution prohibits “unreasonable searches, seizures, and invasions of privacy” by our governmental agents. Louisiana Constitution of 1974, Article 1, Section 5. By reason of American constitutional provisions similar to Louisiana’s, a search warrant is required as a general rule, in order for a search to be constitutionally authorized.

To this general rule, however, historical and practical exceptions have developed justifying warrantless searches under limited, specified circumstances — essentially because of exigent necessity. These include, for instance, a limited search incident to a lawful arrest, Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), a search of an automobile based upon particularized probable cause that it contains contraband or other contents that offend against the law, Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), or the seizure of objects in plain view by one with a lawful right to be in a position to so observe them, Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

The cited decisions involve judicial interpretations of the federal constitution’s Fourth Amendment prohibition against unreasonable searches and seizures. In numerous decisions, this court has similarly interpreted our state constitution’s prohibition as not forbidding as unreasonable a warrantless search based upon valid exceptional reasons of the nature above stated.

We thus reach the issue reserved by us for future decision in State v. Jones, 315 So.2d 270 (La.1975): May warrantless police constitutionally enter an automobile they have taken in custody for reasonable cause, in order for them to inventory and remove its contents for the purpose of safeguarding them, pursuant to a search reasonably limited in scope solely to accomplish that purpose? If our state constitution forbids such warrantless inventory searches without the owner’s consent, then evidence thus unconstitutionally seized is not admissible in evidence in a criminal prosecution. Louisiana Constitution of 1974, Article 1, Section 5.

The United States Supreme Court explicitly held that standard police procedure in making reasonable “inventory searches” of the nature above set forth, does not constitute unreasonable searches which offends the Fourth Amendment to the United States’ Constitution; therefore, evidence obtained as a consequence of such search is admissible in evidence in criminal prosecutions. South Dakota v. Opperman, - U.S. -, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).

In so concluding, the court pointed out that its previous decisions had “consistently sustained police intrusions into automobiles impounded or otherwise in lawful police custody.” - U.S -, 96 S.Ct. 3098. The decisions referred to were Cady v. Dombroski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973); Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968), and Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967).

In Opperman and the three other cited decisions, in each case the vehicle search was made only after the car had been taken to the place of impoundment, the impounding of the car was examined and found to be for valid reason, the search was pursuant to standard procedures which had as sole purpose the safeguarding of the vehicle’s contents, and the search was found to be reasonably limited in scope to accomplish this purpose under the particular circumstances reflected.

We do not, by so noting, intimate that under the federal constitution a search of a vehicle by arresting officers in the field at the scene of the arrest may never constitute a valid inventory search. On the other hand, the care with which our high court examined these factors, before holding permissible the inventory searches there at issue, indicates to us that, in the absence of clear showing of a true inventory search (see Footnote 3 above), the Fourth Amendment does not permit a warrantless search of an automobile without probable cause or without the consent of its custodian. Fundamental constitutional guarantees against unreasonable searches cannot be evaded by labelling them “inventory” searches.

Preliminarily to upholding the validity of the inventory search in South Dakota v. Opperman, the Supreme Court stated, 96 S.Ct. 3096:

“ * * * The authority of the police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge.

“When vehicles are impounded, local police departments generally follow a routine practice of securing and inventorying the automobiles’ contents. These procedures developed in response to three distinct needs: the protection of the owner’s property while it remains in police custody, United States v. Mitchell, 458 F.2d 960, 961 (CA9 1972); the protection of the police against claims or disputes over lost or stolen property, United States v. Kelehar, 470 F.2d 176, 178 (CA5 1972); and the protection of the police from potential danger, Cooper v. California, 386 U.S., at 61-62, 87 S.Ct. 788. The practice has been viewed as essential to respond to incidents of theft or vandalism. See Gabbler v. Commonwealth, 212 Va. 520, 184 S.E.2d 781, 782 (1971), cert. denied, 405 U.S. 1073, 92 S.Ct. 1501, 31 L.Ed.2d 807 (1972); Warrix v. State, 50 Wis.2d 368, 376, 184 N.W.2d 189, 194 (1971). * * * ”

Seizures of contraband during standard inventory procedures have almost uniformly been upheld by the state courts. Applying the Fourth Amendment standard of “reasonableness,” the state courts have overwhelmingly concluded that, even when characterized as a search, the intrusion is constitutionally permissible. The majority of the federal courts of appeal have likewise sustained true inventory procedures as reasonable police intrusions.

In the light of these historically accepted and practicably justifiable reasons, the United States Supreme Court in Opperman held that a true inventory search of a lawfully and actually impounded vehicle did not violate the Fourth Amendment prohibition against unreasonable searches, if conducted within the scope of standard police procedures which had as their purpose the inventorying and safeguarding of the vehicle’s contents.

We find this reasoning persuasive. We therefore, for similar reasons, hold that true inventory searches (see footnote 3) of motor vehicles impounded for reasonable cause do not offend the prohibition of Article 1, Section 5, of our state constitution against unreasonable governmental searches, seizures, or invasions of privacy.

However, in so holding, we adopt the general view of other courts which have reached the same conclusion, that, see Annotation, Inventory Search of Impounded Vehicles, .48 A.L.R.3d 537, 544 (1973):

“An essential requirement to a valid inventory search is that the police must have acted in good faith in conducting the inventory, and must not have used the inventory procedure as a subterfuge for a warrantless search. It has therefore been held that where the conduct of the police was inconsistent with its contention that the search was conducted for inventory purposes, the search was unlawful.”

“Another essential prerequisite to a valid inventory search is that the police must have taken lawful custody of the vehicle in the first instance. It has therefore been held that where the circumstances show that the police had no authority to impound the vehicle, or that police custodial care of the vehicle was not necessary, the inventory search was unlawful.”

“ * * * [Ljawful custody of an impounded vehicle does not of itself dispense with the constitutional requirement of reasonableness in regard to searches thereafter made of such vehicle.”

II.

In the present instance, the state attempts to justify the present as a valid inventory search of the nature that we have just held, see I above, is not prohibited by our state constitution.

Sometime after the defendant was arrested, the officers requested that the wrecker service pick up his automobile for storage. The record does not reflect whether the alleged inventory search occurred before or after this request.

Allegedly in accordance with departmental policy, one of the officers after the arrest proceeded to make what he termed an “inventory search” of the vehicle. He looked in the glove compartment, under the front seat, in the back seat, and in the trunk. He also stated that in such inventory searches he sometimes searched under the hood of the car, Tr. 28, although he did not do so in this instance.

In the open ashtray near the driver’s seat, he saw the small pill (excedrin) bottle and several tablets in it. He took them out and found the plastic containing the white powdery substance which turned out to be PCP, as he suspected.

As in State v. Jones, 315 So.2d 270 (La. 1975), the facts of the present case do not support the conclusion that the officers were conducting an inventory search to safeguard the vehicle’s contents, as contrasted with making a warrantless search for incriminating evidence, without probable cause to do so.

While the car was indeed in police custody at the time, the on-the-spot search by the arresting, officers does not resemble the formal inventory for storage purposes, after a vehicle has been actually impounded, of the federal vehicle-inventory decisions above cited.

No evidence in the record shows, for instance, that standard inventory forms were completed and kept for future reference (showing presence or absence of valuables), nor that a place of safekeeping for valuables so secured was maintained. The present search seems solely to have been for the purpose of obtaining incriminating contents, and all objects seized by the search were turned over to the laboratory for analysis and placed in evidence envelopes.

Unlike in the cited federal decisions, the ear was not formally impounded within the custody of an official storage agency at the time. The record does not even clearly reflect that the tow truck had been called before the search began. We are not prepared to say that a permissible inventory search may never take place in the field at the time of the arrest; however, an indicia of a true inventory search is that it is made at the place of custody for safekeeping of the vehicle, by inventorying and storing those contents which might be pilfered or damaged after the vehicle is stored in official custody.

Furthermore, as was the case in the cited federal decisions, the present vehicle’s custodian was present at the time of the so-called inventory search. If indeed the purpose of the search was to safeguard the custodian’s valuables instead of to search for evidence without probable cause to do so, it would seem more reasonable for the police officers to have made inquiry of the vehicle’s driver concerning the matter, instead of forcing him to stand silent to one side, head and arms across the hood (nose bleeding from being forced abruptly against the hood) or else, later, with hands handcuffed or stretched out across the top of the vehicle, while one of them proceeded with painstaking care to look for whatever he was looking for.

We are not prepared to say that a true inventory search may never be made in the presence of the vehicle’s custodian and without his consent. However, if the purpose of the search is truly only to inventory the contents of the vehicle and to safeguard them during official storage, an indicia that such is the real purpose of the search is to consult with the owner or custodian of the vehicle when he is present at the time of the search. The cited federal decisions concerned inventory searches where the owner of the vehicle was absent or unknown, or where it was not practicable to consult with him at the time of the routine storage inventory.

Additionally, the contraband was inside of an excedrin bottle, an unlikely place for anything of value which an owner could complain was lost or stolen. The opening of the bottle and inspecting its contents is inconsistent with the purpose and permissible scope of a true inventory search. The excedrin bottle was itself found inside an ashtray on the dash of the car, also, an unlikely place for an owner to keep anything of value.

In summary, the facts surrounding the search which produced the PCP support a conclusion that the police officers were searching for incriminating evidence, and that they were not collecting personal items found in the ear which might be stolen and thus needed to be inventoried either for the police department’s protection or to safeguard the defendant’s property.

We therefore hold that the search which produced the PCP admitted into evidence was not part of any inventory procedure authorized by our state constitution as reasonable under the circumstances.

The claim is made that the search was conducted pursuant to a departmental regulation. If so, a police inventory procedure of this nature—which permits arresting police officers unlimited discretion and without probable cause to make on-the-spot searches of vehicles at the scene of an arrest—cannot (however standard it may be with a local department) supersede the provisions of our state constitution restricting all agents of government from making unreasonable searches and seizures. Unconstitutional searches cannot be constitution-alized by standardizing them as a part of normal police practice.

Having concluded that the present was not such an inventory search as is authorized by our constitution, we need not consider alternative arguments of the defendant. They are that, even if the present were a lawful such search, its scope (at least, insofar as the removal of the contents of the ashtray and insofar as the inspection of the bottle’s contents) exceeded the purpose for which authorized; and that noting a small pill bottle in plain view in an ashtray, does not necessarily confer upon a governmental agent the right to seize it and open it, in absence of any indication that it contains contraband or evidence relevant to the search, see State v. Meichel, 290 So.2d 878 (La.1974).

III.

The state contends, alternatively, that the search of the ashtray of the automobile following the defendant’s arrest was a search incident to an arrest, such as is constitutionally authorized even although without a warrant.

The search was made by one officer, while the defendant was standing outside under guard of the other officer. At the time, the defendant’s hands were either handcuffed or else placed (at the direction of the arresting police) on top of the vehicle.

A search conducted incident to a lawful arrest is a well accepted exception to the warrant requirement. Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970). A search of the accused person and the area within his immediate control incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendment. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

As these cases hold, the warrant exception granting police officers the right to search a defendant and the area in his immediate control pursuant to a lawful arrest, is designed to allow the officers to remove any weapons that the defendant might use to resist arrest or effect his escape and to prevent the concealment and destruction of evidence. Those purposes control the permissible scope of the search, and the reasonableness of the search as measured by this permissible scope depends upon the facts of each case.

In the instant case, the vehicle search yielding the PCP was not even claimed by the searching officer to be confined to an examination for weapons that might be used to resist the arrest, or for evidence within the suspect’s immediate control that might be destroyed. The accused was in fact, under guard, well outside the vehicle, arrested for charges not connected with any shown probable cause to search his vehicle.

Under the circumstances shown, therefore, the state’s alternative argument is without merit. The present is not within the permissible scope of a search incident to a lawful arrest. It thus violates our state constitution’s prohibition against unreasonable searches and seizures.

Conclusion

The PCP seized from the ashtray of the defendant’s vehicle was, for the reasons stated, the product of an illegal search. It violated Louisiana Constitution of 1974, Article 1, Section 5, which prohibits unreasonable governmental searches and seizures in violation of individual rights. Consequently, the trial court committed error in denying the defendant’s motion to suppress such evidence and in admitting it into evidence.

Accordingly, the defendant’s conviction and sentence are set aside, and the case is remanded for a new trial in accordance with law.

REVERSED AND REMANDED FOR A NEW TRIAL.

SANDERS, C. J., dissents and will assign written reasons.

SUMMERS, J., dissents.

MARCUS, J., dissents and assigns reasons.

. The driver explained that he had parked on the deserted residential side-street because he was drowsy and felt it unsafe to drive because he was intoxicated as the result of attending a beer party earlier in the evening. As he explained, he had been weaving on a more traveled thoroughfare and therefore pulled off to sleep and sober up.

. Under the circumstances, it was not practicable, for instance, to permit the arrested person to drive the vehicle to the police station for his booking, or to leave the automobile parked and locked, if the vehicle’s driver so wished.

. As contrasted with a search of a motor vehicle based upon probable cause that its contents offend the law, an inventory search is conducted not to secure evidence but merely to inventory the vehicle’s contents in order to safeguard them, as an incident to the vehicle’s being taken into lawful custody (impounding) by the police for the purpose of storage or safekeeping until the owner is located or until, if he is arrested, he is released. The search should be by virtue of a standard procedure and reasonably limited in scope to accomplish only this sole purpose for which authorized. Annotation, Inventory Search of Impounded Vehicle, 48 A.L.R.3d 537 (1973) and decisions cited in the text of the opinion.

. South Dakota v. Opperman, cited above, and the cases therein cited at 96 S.Ct. 3097: City of St. Paul v. Myles, 298 Minn. 298, 218 N.W.2d 697, 699 (1974); State v. Tully, 166 Conn. 126, 348 A.2d 603, 609 (1974); People v. Trusty, 183 Colo. 291, 516 P.2d 423, 425-426 (1973); People v. Sullivan, 29 N.Y.2d 69, 73, 323 N.Y.S.2d 945, 272 N.E.2d 464 (1971); Cabbler v. Superintendent, 528 F.2d 1142 (CA4 1975), petition for cert. pending; Warrix v. State, 50 Wis.2d 368, 376, 184 N.W.2d 189, 194 (1971); State v. Wal- len, 185 Neb. 44, 173 N.W.2d 372, cert. denied, 399 U.S. 912, 90 S.Ct. 2211, 26 L.Ed.2d 568 (1970); State v. Criscola, 21 Utah 2d 272, 444 P.2d 517 (1968); State v. Montague, 73 Wash.2d 381, 438 P.2d 571 (1968); People v. Clark, 32 Ill.App.3d 898, 336 N.E.2d 892 (1975); State v. Achter, 512 S.W.2d 894 (Mo.App.1974); Bennett v. State, 507 P.2d 1252 (Okl.Cr. App.1973); People v. Willis, 46 Mich.App. 436, 208 N.W.2d 204 (1973); State v. All, 17 N.C. App. 284, 193 S.E.2d 770, cert. denied, 414 U.S. 866, 94 S.Ct. 51, 38 L.Ed.2d 85 (1973); Godbee v. State, 224 So.2d 441 (Fla.App.1969).

. South Dakota v. Opperman, cited above and the cases therein cited at 96 S.Ct. 3098; Cabbler v. Superintendent, supra; Barker v. Johnson, 484 F.2d 941 (CA6 1973); United States v. Mitchell, 458 F.2d 960 (CA9 1972); United States v. Lipscomb, 435 F.2d 795 (CA5 1970), cert. denied, 401 U.S. 980, 91 S.Ct. 1213, 28 L.Ed.2d 331 (1971); United States v. Pennington, 441 F.2d 249 (CA5 1971), cert. denied, 404 U.S. 854, 92 S.Ct. 97, 30 L.Ed.2d 94 (1971); United States v. Boyd, 436 F.2d 1203 (CA5 1971); Cotton v. United States, 371 F.2d 385 (CA9 1967). Accord, Lowe v. Hopper, 400 F.Supp. 970, 976-977 (S.D.Ga.1975); United States v. Spitalieri, 391 F.Supp. 167, 169-170 (N.D.Ohio1975); United States v. Smith, 340 F.Supp. 1023 (Conn.1972); Gravitt v. United States, 484 F.2d 375 (CA5 1973), cert. denied 414 U.S. 1135, 94 S.Ct. 879, 38 L.Ed.2d 761 (1974).

. The searching officer inferentially admitted this, when he testified that the ashtray was open (rather than closed, as the defendant testified, who was driving his sister’s car): “Yes, sir, I’m positive it was open because on an inventory search, I have no business going into an ashtray.” Tr. 24.