Why Inventories Are Allowed

Why Inventories Are Allowed

A warrant and probable cause do one job: they check officers who are looking for evidence of crime. Before the intrusion, a neutral magistrate asks whether the officer's suspicion rests on facts, and the officer has to put that suspicion into words. That mechanism has nothing to work on when police are listing what a towed car or an arrestee's bag contains. An officer making a routine inventory is not looking for anything in particular, so there is no suspicion to articulate and no probable cause to test. In South Dakota v. Opperman the Court said that the probable-cause standard is peculiarly related to criminal investigations and that an inventory is not conducted to investigate criminal activity.¹ The inventory is a caretaking function instead: police have taken custody of property, and they must secure it and account for it. Illinois v. Lafayette treated the station-house version as an incidental administrative step that follows an arrest and precedes incarceration, with no independent identity as a category of search.²

Once probable cause and a warrant drop out, something else has to test the search, and that something is reasonableness. The Fourth Amendment does not require a warrant for every search; it demands only that the search be reasonable under the circumstances.³ Reasonableness is a balance of the intrusion against the government's interests. In New Jersey v. T.L.O., a school-search case, the Court observed that probable cause is not an irreducible requirement and that where a careful weighing of public and private interests favors a standard short of probable cause, it has not hesitated to adopt one.⁴ The inventory fits that pattern. When vehicles are impounded, departments routinely secure and inventory the contents, and state courts have overwhelmingly upheld the practice even when they call it a search.⁵ Opperman treated that long and nationwide uniformity as part of what makes the practice reasonable.⁶

The privacy side of the balance is lighter than it would be in a home, and custody is the reason. A person who is arrested has already been seized, and the trip to the station house is no more than a continuation of the custody inherent in the arrest.⁷ Conduct that would be impractical or embarrassingly intrusive on the street can be done more readily, and more privately, at the station, which is why the scope of a station-house search often differs from the scope of a search made at the scene.⁸ Vehicles carry their own reduced expectation of privacy. An automobile is pervasively regulated and often taken into police custody, so the expectation of privacy in it is significantly lower than in a home or office.⁹ Police stop and examine cars every day for expired plates, lapsed inspection stickers, or defective equipment, and the driving public knows it.¹⁰ Reduced privacy lowers the justification the government must offer, but it does not remove the need for one, so the caretaking purpose still has to be real.

The facts of Opperman show a genuine inventory. Vermillion police towed a car that had accumulated multiple parking violations, the owner was absent and could not arrange for his belongings to be safeguarded, and valuables were visible inside.¹¹ Officers followed the department's routine and listed the contents, including the unlocked glove compartment, where they found marijuana. The Court upheld the search because it was a routine, good-faith inventory and not a pretext for a criminal investigation.¹²

The contrast shows what the exception does and does not allow. No case-by-case probable cause is needed, and it does not matter whether any particular car appears to hold valuables. It is enough that the inventory is not arbitrary and is carried out under the department's standard procedures.¹³ That requirement replaces the magistrate's check. An officer with open-ended discretion to open containers would have every incentive to treat an impound as an excuse to hunt for evidence, whereas a preexisting policy fixes the scope of the search before the officer knows what any given car or bag holds.¹⁴ Section 4 develops that safeguard. This exception also rests on a different foundation from a search incident to arrest, which follows automatically from the arrest itself and turns on where the arrestee is located.¹⁵ Section 5 returns to that contrast.

Inventories grew out of three distinct practical needs.¹⁶ The subsections that follow take them one at a time, beginning with the duty that attaches as soon as police take possession of someone's belongings.

Protecting Property in Custody

The first of the three interests behind inventories is the simplest: once police take possession of someone's belongings or vehicle, they become responsible for what they hold. South Dakota v. Opperman lists the protection of the owner's property while it remains in police custody as the first of the distinct needs that produced routine inventory practices.¹⁸ The reasoning is functional. Property that arrives in a tow lot or a jail property room can be lost, taken, or mixed up with someone else's. Unless police recorded what arrived, nobody can later show what ought to go back to the owner. An itemized list is the practical way to meet that responsibility, because it fixes what came in at the moment custody began.¹⁹ The reasoning carries over to an arrestee's belongings, which police may inventory at the station house before incarceration following a valid arrest.²⁰

The same interest explains why an inventory is allowed to look inside things. People keep their valuables and important papers in containers and compartments, so a list limited to what sits in plain view would leave out the items an owner is most likely to ask about later. Opperman noted that standard inventories often include the glove compartment, because it is a customary place for ownership and registration documents and for the temporary storage of valuables.²¹ When a vehicle has been lawfully impounded under local standards, the inventory may extend to the whole vehicle and to closed containers in it, so that the contents can be listed.²² Section 3 takes up that extension in detail. For now the point is that the reach of the search tracks the reach of the duty, which covers the owner's property wherever it happens to be kept.

The facts of Colorado v. Bertine show the interest at work. A Boulder officer arrested Steven Bertine for driving under the influence, and before a tow truck arrived to take the van to an impound lot, a backup officer inventoried its contents.²³ The backup officer found a backpack directly behind the front seat, opened it, and recorded what was inside: a nylon bag holding metal canisters of cocaine, methaqualone tablets, drug paraphernalia, seven hundred dollars in cash, and another two hundred ten dollars in a sealed envelope in an outside zippered pouch.²⁴ The trial court found that the officers decided to impound and inventory in good faith and that the department's standard procedures called for a detailed inventory that included opening containers.²⁵ On that footing the Court held that an inventory of a closed backpack and the containers within it is reasonable when it is conducted in good faith under standardized procedures that mandate opening such containers.²⁶ The cash is the property-protection interest in miniature. Money tucked into a pouch and a sealed envelope is the kind of property that disappears from a van sitting in a lot, and the entry on the inventory record is what allows the department to show later how much was there when custody began and to return it.

Because the interest being served is the owner's property as a whole, a genuine inventory is complete in a way an evidence search is not. The contrast appears when an officer records only what looks like evidence.

Drugs surfaced in both this scene and Bertine, so their discovery cannot be what distinguishes the two. What distinguishes them is what the officer did with the rest of the property. The Bertine officers followed a routine that called for a detailed listing and recorded the money, so the search served the custody responsibility. The officer in the trunk scene ended the search at the evidence, which is why an inventory that records only the contraband looks like a search for evidence under another name. A mix of motives does not by itself defeat a routine inventory²⁷, but the procedure has to do what an inventory exists to do, which is to account for what the police are holding. Section 4 develops how courts separate a real inventory from a pretext.

Guarding Against False Claims

The second interest behind inventories protects the police and the department that employs them. Opperman lists the protection of the police against claims or disputes over lost or stolen property as a need of its own, separate from the owner's interest in having property safeguarded.²⁹ A Massachusetts decision applying Opperman described the same purpose as protection against unfounded charges of misappropriation.³⁰ The reasoning rests on how property disputes arise. Once an arrestee's belongings are taken at booking, the arrestee and the employees who handled them each have a reason to tell the story their own way, and later nothing exists against which to check either account. An arrestee who wants to press a claim has an incentive to say that cash or jewelry went missing, and an employee with access to the property room has an opportunity to take something and let the complaint look like exaggeration. A list written at intake removes the guesswork, because it records what the department received before either side has a stake in the story.

In Illinois v. Lafayette the Court recognized both dangers: persons employed in police activities have been known to steal property taken from arrested persons, and arrested persons have been known to make false claims about what was taken from them at the station house.³¹ The answer was a standardized procedure for making a list or inventory as soon as reasonable after reaching the station house, which deters false claims and also inhibits theft or careless handling.³² Each feature of that procedure does separate work. Standardization means the list is made the same way for every arrestee, so no individual employee decides which belongings deserve an entry. Promptness means the list captures the property as it stood when custody began, since a list compiled days later would only add another account to the dispute. Because every item is recorded, a shortfall at release becomes visible, which gives anyone tempted to pocket something a reason to leave it alone. The same record also serves the arrestee, because an item-by-item inventory forestalls a later claim that some item was never returned.³³

The booking-room facts show the interest at work. The arrestee in Lafayette arrived at the station carrying a shoulder bag, and the question was whether police could search it without a warrant before incarceration.³⁴ Under the standard booking procedure, the arrestee empties his pockets and the officer removes and lists every item in the bag, so the written list shows exactly what the department holds and what must be returned on release. That list gives the arrestee a basis for demanding what belongs to him and gives the department an answer to any claim that something vanished. The Court treated examining and listing the items before incarceration as a reasonable administrative procedure.³⁵ It also declined to second-guess police departments about which practical method best deters theft and false claims, so it did not require police to seal the bag unopened.³⁶ Section 2 returns to that point.

Both scenes involve belongings in lawful custody at the station house, so custody is not what separates them. The difference is the list. The Lafayette routine produced a record at intake that fixes what the department holds, while the second search left a later dispute with nothing to rest on. A search that creates no record cannot lean on this interest, and a court would ask what else the officer was doing, a question Section 4 takes up under the heading of pretext.

Protecting Against Danger

The third interest behind inventories is physical safety. Opperman names the protection of the police from potential danger as the last of the three distinct needs that produced routine inventory practice.³⁸ In Illinois v. Lafayette the Court spelled out what that danger looks like: arrestees have injured themselves or others with belts, knives, drugs, or other items on their persons while being detained, and razor blades, bombs, or weapons can be concealed inside articles that look innocent.³⁹ The risk arises at two moments. While police hold the property, it sits in a jail or storage area among officers and other detainees, and on release the same property goes back into the hands of the person who was in custody. Lafayette treated reasonable measures to limit the risk as justified at either point, and examining and listing every item is the way to find out what is actually there.⁴⁰

The justification is objective and categorical. Lafayette held it immaterial whether police actually fear any particular package or container, because the need to guard against these hazards arises independently of an individual officer's subjective concerns.⁴¹ The reason is structural. The risk attaches to the whole category of containers carried by someone taken into custody, and a hidden blade looks no different from a harmless comb until someone checks. A rule that required the officer to articulate a specific fear before opening a bag would force fine judgments on officers who have little time and little information in a booking room, and it would leave unexamined the one bag that happened to hold a weapon but gave no hunch. A uniform rule that everything taken into custody is examined and listed removes that guesswork and treats every arrestee and every object the same way. In Lafayette itself the item was a shoulder bag carried into the station house, and the Court treated examining and listing its contents before incarceration as a reasonable administrative step, without asking whether the officers feared that bag.⁴²

Vehicle inventories rest on the same interest, and storage does not dissolve it. A massachusetts decision applying Opperman, Commonwealth v. Matchett, restated the purpose of protecting the public against weapons or other dangerous instrumentalities that might fall into the hands of vandals.⁴³ The inventory of the towed station wagon in that case listed a loaded pistol, ammunition, a sawed-off shotgun, and a sword cane, which shows what an ordinary car can be carrying.⁴⁴ The car in Opperman was kept in a county yard that was only partly fenced and had a history of vandalism, so an unlisted firearm left in that car was a real hazard.⁴⁵ Colorado v. Bertine then rejected the argument that a secure storage facility makes inventory unnecessary, reasoning that police may still want to protect themselves or the owners of the lot against dangerous instrumentalities and false claims.⁴⁶ Even a guarded lot has employees who move and handle cars, and those employees face the risk if no one has recorded what the car holds.

Lafayette adds a secondary observation that sits beside the danger rationale: inspecting an arrestee's personal property may help police ascertain or verify the person's identity.⁴⁷ Papers and cards found among the belongings can confirm who is in custody. This benefit is an additional reason an examination of belongings is useful, and the three interests from Opperman remain the core of the exception.

The danger interest requires custody, and the next pair of situations differs on that fact alone.

The arrestee in Lafayette stands on the other side of the line. In neither situation did the officer hold a particular suspicion about the bag, so suspicion is not what separates them. What separates them is that the Lafayette bag was in police custody at the station house on the way to a cell, which is when its contents become a hazard to the people holding it. That categorical justification removes the need for officer-specific fear, but it does not cure a sham inventory, because the exception covers a routine, good-faith caretaking step and not an investigation under another name.⁴⁸ Section 4 develops how courts tell the two apart.