Concept
Inventories of Impounded Vehicles
Inventory search
Inventories of Impounded Vehicles
A car taken into police hands raises the same two questions that an arrestee's bag raised in Section 2: whether the property is in lawful police custody, and whether the search follows a routine. The setting is different, though. A vehicle that police tow becomes their responsibility, its contents sit exposed to theft and vandalism until the owner returns, and the department is the party blamed when something goes missing. In South Dakota v. Opperman the Court called a routine inventory of an impounded car's contents a reasonable response to that problem, and it identified three needs the inventory serves: protecting the owner's property while it remains in police custody, protecting the police against claims or disputes over lost or stolen property, and protecting the police from potential danger.1 The Court also reasoned that probable cause is a standard peculiarly related to criminal investigations, which an inventory is not, and that the expectation of privacy in an automobile is significantly lower than in a home or office.2
Those reasons shape the two requirements that run through this whole topic. Lawful custody supplies the reason to list what is inside, and a standard routine keeps the officer from turning that custody into an excuse to search for evidence. Colorado v. Bertine later applied the same framework to a van whose driver had been arrested for driving under the influence, and it carried the inventory from a glove compartment to closed containers inside the vehicle.3 This section follows that development in two parts: when an impoundment is lawful, and what an inventory may open once the vehicle is in custody.
Lawful Impoundment
The vehicle inventory depends on the car being in police custody, so every vehicle case begins with the question of lawful impoundment. In Opperman, Vermillion police towed a car to the city impound lot after it had been left illegally parked and had drawn multiple parking violations, and an officer who saw personal property inside inventoried it and found marijuana in the unlocked glove compartment.4 The owner, having left the car illegally parked for an extended period, was subject to impoundment and was not present to arrange safekeeping for his belongings.5 The Court described the police as engaged in a caretaking search of a lawfully impounded automobile, found no suggestion that the standard procedure was a pretext for investigation, and held the search reasonable on that record.6 Each of those facts traces back to custody. A parked car that stays with its owner remains under the owner's watch, but once the department tows it away the owner can no longer guard it and the department has taken on that task, which is why an itemized list of the contents becomes a reasonable step.
Opperman involved an owner who was absent, and the more common occasion for impoundment is an arrest. Police impound vehicles that are abandoned, illegally parked, or unsafe, and most often those whose owner or operator has been arrested in or near the car.7 Bertine reached that situation. After a Boulder officer arrested the driver of a van for driving under the influence, and before a tow truck arrived to take the van to an impoundment lot, a backup officer inventoried its contents.8 The resulting rule lets police inventory a lawfully impounded car whether it was left illegally parked or its driver was stopped while operating it and then arrested.9
That extension invites an obvious objection, because an arrested driver is present and could be asked what to do with the car. The four dissenters in Opperman would have required police to make reasonable efforts to reach the owner and arrange other security or obtain consent, and they would have made the driver's consent a prerequisite when the car was impounded incident to arrest.10 Bertine rejected the idea that such less intrusive alternatives are ever necessary, and it held the impoundment lawful even though a court looking back could devise equally reasonable rules requiring a different procedure.11 The reasoning is the one Section 2 met in the sealed-bag argument: a reviewing court can nearly always imagine a gentler option, and a test keyed to imagined options would turn every impoundment into a dispute over what else the officer might have done.
A second objection concerns the place where the car ends up. A department with a fenced, guarded lot might seem to have no need to list what is inside. Opperman declined to require police to provide secure impoundment facilities, and Bertine rejected the argument that a secure lot makes inventory unnecessary, because even a secure facility leaves police wanting protection for themselves and the lot's owners against false claims of theft and against dangerous items.12 The inventory therefore answers a risk that secure storage reduces but does not remove.
Impoundment is not automatic after every arrest, and the decision to impound must itself rest on something other than a wish to look for evidence. In Dyke v. Taylor Implement Manufacturing Co. the driver had been arrested for reckless driving and was at the courthouse to make bail when his car was searched, and the Court ruled that the search was not incident to impoundment, because the police seemed to have parked the car near the courthouse as a convenience to the owner and were willing to let a friend, a relative, or the driver himself drive it away.13 On that reasoning, the better view is that immediate impoundment after an arrest for a minor traffic violation is improper, because police should give the driver a reasonable chance to post bail and reclaim the car, and an improper continued detention contaminates the impoundment so that whatever the inventory turns up must be suppressed.14 Where department rules leave officers a choice between impounding and parking and locking the car, the choice is proper so long as it is made according to standard criteria and on a basis other than suspicion of evidence of criminal activity.15 Bertine found that standard met because the Boulder directive set several conditions that had to be satisfied before an officer could use the park-and-lock alternative, a conclusion that has drawn criticism because the regulation placed no restriction on choosing impoundment.16 Section 4 returns to that point when it asks what makes a criterion standard.
The roadside search and the search in Opperman share a lack of probable cause and a look inside the car, so neither fact explains the different outcomes. What separates them is custody. The car in Opperman sat in the city lot, where the department had to protect and account for its contents, while the car at the roadside stayed in its owner's hands. The trap is applying the inventory label to a vehicle never taken into custody, and Section 5 shows which other exceptions operate at the roadside.
Closed Containers in Vehicles
Once a vehicle is lawfully in custody, the next question is how far into it the inventory may reach. The inventory in Opperman stopped at an unlocked glove compartment.18 In Bertine the backup officer found a backpack directly behind the front seat, opened it, and discovered a nylon bag holding metal canisters of cocaine, methaqualone tablets, cocaine paraphernalia, and seven hundred dollars in cash, with another two hundred ten dollars in a sealed envelope in an outside zippered pouch.19 The trial court found that the officers decided to impound and to inventory in good faith and that standard procedures mandated a detailed inventory involving the opening of containers, yet it suppressed the evidence under the Colorado Constitution, and the Colorado Supreme Court affirmed under the United States Constitution.20 The Supreme Court reversed, holding that inventory searches of impounded vehicles and the closed containers inside them are reasonable under the Fourth Amendment when conducted in good faith under standardized police procedures that mandate opening such containers.21
The three interests from Opperman explain why the inventory reaches inside containers. A backpack can hold the owner's valuables, as the cash in Bertine's bag shows, and an itemized list protects police against a later claim that something was lost. A bag or canister may also hold dangerous items, which the department wants identified before its employees handle the property. If police had to leave every closed container unopened, the inventory would record only a backpack with contents unknown, and that entry would serve none of the three purposes. The rule therefore permits police to list the vehicle's contents, including closed containers, once the vehicle is lawfully impounded under a local standard.22
Bertine also answers a question that Opperman's facts leave open. The inventory in Opperman was prompted by valuables visible in plain view, and the case could be read to permit an inventory only after such an observation. That reading would be unsound, because the absence of visible valuables does not make it less likely that personal effects lie elsewhere in the car, and the right to inventory does not depend on a case-by-case judgment about the likelihood of finding valuables. It is enough that the particular inventory was not arbitrary, meaning that it followed standard procedures in the local department.23 The step from the glove compartment to the closed backpack follows the same logic, since the hidden items are where the owner's property and the hazards are most likely to be.
The condition that does the real work is the department's routine. Bertine declared it "permissible for police officers to open closed containers in an inventory search only if they are following standard police procedures that mandate the opening of such containers in every impounded vehicle."24 Dictum in Florida v. Wells suggests that officers may be allowed some latitude to decide, in light of the nature of the search and the characteristics of the container, whether a particular container should be opened.25 The reason for tying the opening to a routine is one of incentive. An officer who chooses for himself which containers to open could use lawful custody as cover for opening exactly those where evidence is most likely to hide, and a routine that covers containers across the board removes that temptation. Section 4 develops how courts judge whether a procedure is standardized.
The Bertine backpack and the briefcase share a lawful impoundment and an absence of probable cause, so neither fact decides the outcome. The difference is the routine: in Bertine the procedures mandated opening containers, and in the briefcase scene they required containers to stay sealed. A student who reads Bertine as allowing every container to be opened has dropped the procedure covering containers, the condition on which the whole holding rests. Scope has outer limits as well, and Section 4 treats them with the pretext question.
Lawful Impoundment
A vehicle inventory depends on one threshold fact: the car must already be in police custody. The three interests behind the doctrine are protecting the owner's property while the department holds it, protecting police from claims that something was lost or stolen, and protecting police from dangerous items. All three exist only because the department has taken over the car.27 A car that stays in its owner's hands gives police nothing to safeguard, nothing to account for, and no hazard to manage on anyone else's behalf. Every vehicle problem therefore begins with lawful impoundment, which asks two things: why the car came into custody, and how the decision to take it was made.
The clearest example of custody is South Dakota v. Opperman. Vermillion police towed the defendant's car to the city impound lot after it had been left illegally parked for an extended period and had drawn multiple parking violations. An officer who saw personal property inside inventoried the car and found marijuana in the unlocked glove compartment.28 The Court treated the police as engaged in a caretaking search of a lawfully impounded automobile. It pointed out that the owner, having left the car illegally parked and therefore subject to impoundment, was absent and could not arrange safekeeping for his belongings. It also noted that valuables were in plain view inside the car and that nothing suggested the standard procedure was a pretext for investigation.29 Each of those facts leads back to custody. Once the department towed the car, the owner could no longer watch over it, and the department inherited that job. An itemized list of what was inside is the ordinary way to do it.
Opperman involved an absent owner, but the most frequent occasion for impoundment is the arrest of the person driving. Police also impound cars that are abandoned, illegally parked, or mechanically unsafe.30 Colorado v. Bertine carried the doctrine into the arrest setting. Boulder police arrested a driver for driving while under the influence, and before a tow truck arrived to take his van to an impoundment lot, a backup officer inventoried its contents.31 The trial court found that the officers decided to impound and to inventory in good faith, and the Supreme Court held the inventory reasonable under the Fourth Amendment.32 The resulting rule lets police inventory a car whether it was found illegally parked or its driver was stopped while operating it and then arrested.33
Because an arrested driver is present, an obvious objection is that police should ask what the driver wants done with the car before towing it. Bertine rejected the argument that impoundment was improper because the driver was not offered the chance to make other arrangements, and it rejected the broader approach of asking whether a less intrusive alternative existed. The impoundment was lawful even though courts might, in hindsight, devise equally reasonable rules requiring a different procedure.34 The reason is practical. A reviewing court can nearly always imagine a gentler option, so a test that asked whether some other course was possible would turn every impoundment into a debate about what else the officer might have done. Officers in the field would have no way to know in advance which course would survive review, and the question becomes whether the impoundment followed the department's standard practice.
Impoundment is still not automatic after every arrest. In Dyke v. Taylor Implement Manufacturing Co. the driver had been arrested for reckless driving and was at the courthouse to make bail when his car was searched. The Court ruled that the search was not incident to impoundment, because the police seemed to have parked the car near the courthouse merely as a convenience to the owner and were willing to let a friend, a relative, or the driver himself drive it away.35 On that reasoning, the better view is that immediate impoundment after an arrest for a minor traffic violation is improper, because police should give the driver a reasonable opportunity to post bail and reclaim the car. If the driver is denied that opportunity, the improper detention contaminates the impoundment, and whatever the inventory uncovers must be suppressed.36 The result follows from the custody rationale: when the owner is about to retrieve the car, the need to safeguard it for any length of time largely disappears, and so does much of the justification for listing its contents.
Departments frequently give officers a choice between towing a car and parking and locking it where it stands. Bertine held that such discretion is not objectionable so long as it is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity.37 Some discretion is unavoidable, because the facts of each stop differ in ways no rule can anticipate: a car blocking traffic calls for a different response than one parked safely outside the driver's home. The danger lies in the incentive that open-ended discretion creates. An officer who may tow whichever cars he chooses can pick the ones he suspects hold evidence and then call the search an inventory. Standard criteria remove that opening by tying the choice to features of the car and the situation that any officer in the department would recognize, so the decision cannot rest on a hunch about what is inside. The majority found the criteria satisfied because the Boulder directive set several conditions that had to be met before an officer could use the park-and-lock alternative. Critics respond that the directive placed no restriction on choosing impoundment, which leaves the application of the Court's own test open to question.38
Other decisions show routine, rather than suspicion, supplying the reason for custody. In Riley v. California an officer who stopped a driver for expired registration tags learned that the license had been suspended and impounded the car under department policy, and the inventory that followed turned up two handguns under the hood.39 The Court's holding in that case concerned the search of a cell phone taken from the arrestee, which belongs to a different topic, but the impoundment facts show the pattern the doctrine expects: a trigger the department's policy recognizes, then a tow, then a listing of contents.40 In Florida v. White police arrested the owner at work on unrelated charges and, without a warrant, seized his car because they had probable cause to believe it was forfeitable under the state contraband statute. A later inventory search found crack cocaine in the ashtray.41 The Court's holding concerned only the seizure, which required no warrant when the car was taken from a public place, so White shows that a lawful seizure is another way to bring a car into custody and does not hold that every seizure justifies every inventory.42
Opperman and the hypothetical share the facts that do not decide the outcome: neither involved probable cause, and each ended with an officer listing what was inside a towed car. What separates them is the reason for the tow. In Opperman the department acted on a standard trigger, a car left illegally parked for an extended period, while in the hypothetical suspicion of evidence drove the decision. A student who sees a tow in a fact pattern and stops there has missed why the car was towed, which is the question the cases ask.
Passing all three steps establishes only custody. Whether the department's routine calls for the listing, and how far the listing may go, are the questions taken up next.
Closed Containers in Vehicles
Once a car is lawfully in police custody, the remaining question is how far into it the inventory may go. Valuables and hazards rarely sit in the open. They ride in backpacks, bags, and pouches, so a listing that stopped at the surface would protect very little. Colorado v. Bertine extended the framework of South Dakota v. Opperman and held that police may inventory the interior of an impounded vehicle and the closed containers within it as part of standardized department procedures, without a warrant and without probable cause.44 Two conditions travel with that permission: the search must follow an established routine, and it must not be a pretext for investigation.45
In Bertine a Boulder officer arrested Steven Bertine for driving under the influence, and before a tow truck arrived to take his van to an impoundment lot, a backup officer inventoried the contents.46 The officer found a backpack directly behind the front seat and opened it, which revealed a nylon bag holding metal canisters of cocaine, along with methaqualone tablets, drug paraphernalia, and cash, while an outside zippered pouch held a sealed envelope with more money.47 The trial court found that probable cause supported the arrest, that the officers decided to impound and to inventory in good faith, and that the department's standard procedures required a detailed inventory that involved opening containers.48 It suppressed the evidence anyway under the Colorado Constitution, and the Colorado Supreme Court affirmed under the United States Constitution.49 The Supreme Court held that the Fourth Amendment did not bar the State from proving its charges with that evidence, because inventories of impounded vehicles and the closed containers inside them are reasonable when conducted in good faith under standardized procedures that mandate opening such containers.50
The reach into containers follows from the purposes that justify an inventory at all, which are protecting the owner's property, protecting the department against claims that something was lost or stolen, and protecting police from dangerous items.51 Each purpose extends inside a bag. A listing that recorded only a backpack would leave the owner unable to show what the pack held, would expose the department to a later claim that cash had vanished, and would leave any hazardous item inside undiscovered. The Court reasoned the same way about an arrestee's shoulder bag in Illinois v. Lafayette. It observed that officers cannot be expected, in the everyday course of business, to make fine and subtle distinctions about which containers may be searched and which must be sealed as a unit, and it held that police may search any container or article in an arrestee's possession as part of the routine incident to incarceration, in accordance with established inventory procedures.52 The privacy cost is bounded by the setting, because the container is already in the department's hands and the routine applies the same way to every vehicle.
The second condition does different work from the first. Custody explains why police may look at the contents, and the routine explains which containers they may open. Because the department's procedure exists before the officer ever sees the car, it gives a reviewing court something definite to check the officer's conduct against, which is why the trial court's finding about the Boulder procedures carried so much weight in Bertine. It also leaves the officer no occasion to decide which bags look interesting. How courts judge whether a procedure is truly standardized, and how much room it may leave the officer, is the subject of Section 4.
The Bertine backpack and the locked case share a lawful impoundment and an absence of probable cause, so neither fact separates them. What separates them is whether a standard procedure stood behind the opening. A common error is to read Bertine as holding that lawful custody alone opens every bag in the car. Custody is the threshold, and the procedure is the second condition that must also be met.53
Michigan v. Long shows how an inventory theory can arise separately from other justifications for searching a car. Officers there found marijuana in the passenger compartment of a car that had gone into a ditch, decided to impound it, and opened its unlocked trunk, where they found about 75 pounds of marijuana.54 The Michigan trial court and Court of Appeals upheld the trunk search as an inventory under Opperman, but the Michigan Supreme Court suppressed the marijuana as a fruit of an illegal search of the interior.55 The United States Supreme Court found the interior search justified on a different basis and declined to decide the trunk question, because the Michigan Supreme Court had not passed on it, and it remanded for a determination of whether the trunk search was permissible under Opperman or other decisions.56 Long therefore holds nothing about containers. It shows that a trunk or container inventory has to satisfy the inventory conditions of custody and routine on its own terms.
The insistence that the opening be tied to a standardized procedure is the point Justice Blackmun's concurrence in Bertine stressed, and Section 4 returns to it when it takes up officer discretion and pretext.57