Concept
Inventory Versus Other Exceptions
Inventory search
Inventory Versus Other Exceptions
An inventory is one of several ways police may search without a warrant, and it sits closest to two exceptions that students routinely confuse with it, search incident to arrest and the automobile exception. Each of the three rests on a different justification, so the first step in any problem is to identify which justification the facts actually supply. The separation has a practical purpose. A search can be given a label after it happens, and if an inventory could be claimed whenever police held property, officers who missed the timing limit on a search incident to arrest, or the probable-cause requirement for a vehicle search, could simply recharacterize the same search. Holding each exception to its own justification keeps one from absorbing the limits of the others.
Step four is where the inventory enters, usually as the fallback once the other two have failed, and the rest of this section tests steps two and three against decided cases. The timing problem comes first.
Versus Search Incident to Arrest
The search-incident exception treats a container differently from the arrestee's own clothing. Searches of containers such as bags or briefcases must generally take place during the arrest, so police who wait an hour before opening a bag found next to the arrestee cannot rely on the exception.4 The timing rule follows from what the exception protects. An arrest puts weapons and evidence within the arrestee's reach, and that reach is the reason officers may look without a warrant. Once police hold a closed container and the arrestee is under control, no one can reach into it, so a later opening has lost the reason that justified the search at the moment of arrest. In United States v. Chadwick, federal narcotics agents who had probable cause to believe a double-locked 200-pound footlocker held marijuana tracked it from a train station to a car, arrested the defendants as soon as it was lifted into the trunk, seized it, and opened it afterward at the agents' office without a warrant.5 A search that late could not be defended as incident to the arrest.6 The only escape from the timing rule is a legitimate reason for the delay, as in United States v. Edwards, where police waited ten hours to search an arrestee's clothes for paint chips because it took that long to find substitute clothing.7
The failure of the arrest rationale does not close the analysis, because a delayed container search that cannot qualify as incident to arrest may still be authorized as an inventory when it follows standardized procedures.8 The inventory does not ask when the container was found relative to the arrest. It asks whether the property is in lawful custody, whether a routine governed the search, and whether the search was a pretext, as in Illinois v. Lafayette, where the arrestee's shoulder bag was opened at the station house during booking.9 The dissent in Chadwick pointed to this route, observing that police may establish a routine of inventorying the contents of any container taken into custody for reasons of security and property conservation, so that officers who bring a suspicious container into their office are not barred from inventorying it.10 That observation comes from the dissent and is not the majority's holding, but the rule it describes is the one later inventory doctrine follows.
Two errors recur on exam facts of this kind. Some students stop when the search is too late to be incident to arrest, forgetting that the same bag may qualify as an inventory. Others label any late station-house search an inventory without asking whether a standardized procedure governed it, which is the fact that separates the booking officer from the detective. The arrest exception therefore asks about timing and reach, and the inventory asks about custody and routine.
Versus the Automobile Exception
The automobile exception answers a different question. It permits a warrantless search of a vehicle when police have probable cause to believe the vehicle holds contraband or evidence, and it rests on two features of vehicles: they are readily mobile, and the expectation of privacy in them is lower than in a home because they are pervasively regulated.12 In California v. Carney, DEA agents watched a youth spend more than an hour inside a motor home parked in a downtown San Diego lot, stopped the youth when he left, and heard that he had received marijuana inside, after which one agent entered the motor home without a warrant.13 The Court upheld the search under the automobile exception because the motor home was readily mobile, was licensed and regulated, and was situated so that an objective observer would see a vehicle in use rather than a residence.14
The reasoning in Carney shows what mobility and reduced privacy accomplish. Those two features justify searching without first going to a magistrate, so long as the overriding standard of probable cause is met.15 Mobility and reduced privacy therefore excuse the warrant only; probable cause is still required. The same reasoning fixes the scope of the search: if probable cause justifies searching a lawfully stopped vehicle, it justifies searching every part of the vehicle and its contents that may conceal the object of the search.16 The trigger for the automobile exception is probable cause, and its reach follows the object the police are looking for.
The inventory has a different trigger and a different reach. Probable cause is irrelevant to a noncriminal inventory, a point the Chadwick majority itself recognized in a footnote.17 What the inventory requires instead is lawful custody of the property and a standardized procedure free of pretext, and its reach follows the caretaking purposes of protecting property, answering claims, and avoiding danger.18 Carney itself shows the two labels competing on one set of facts, since the magistrate upheld the later station-house search of the motor home as a routine inventory while the Supreme Court analyzed the case under the automobile exception.19 When agents have probable cause and a readily mobile vehicle, the automobile exception is available without any impoundment or routine. When they lack probable cause, only the inventory remains, and it demands custody and a standard procedure.
A third basis for entering a car should be kept apart from both. In Michigan v. Long, deputies who saw a car swerve into a ditch searched the passenger compartment for weapons, and the Court upheld that protective search under Terry because the officers had reason to believe the car held weapons dangerous to them, with no probable cause to arrest.20 The lower courts had sustained the trunk search as an inventory under South Dakota v. Opperman, but the Michigan Supreme Court did not address that ruling, and the Court declined to decide it and remanded for the state court to determine whether the trunk search was permissible under Opperman or other decisions.21 One car thus produced two separate justifications for two compartments, each with its own requirement.
Versus Search Incident to Arrest
The search-incident exception and the inventory can reach the same bag, yet they rest on different justifications, and the difference shows most clearly when police open a container after the arrest is over. The search-incident exception rests on two rationales: officer safety, because an arrestee might use a weapon to resist or escape, and preservation of evidence, because an arrestee might conceal or destroy it.23 Both rationales depend on what the arrestee can reach. That is why the arrestee's location at the time of the search matters so much, and why police may search the person and the area within the arrestee's immediate control.24 A closed bag that police have already taken away holds no weapon the arrestee can grab and no evidence the arrestee can destroy, so the reasons for looking without a warrant have run out. The rule follows: searches of containers such as bags or briefcases must generally take place during the arrest, and police who wait an hour before opening a bag found next to the arrestee cannot rely on the exception.25
United States v. Chadwick shows the timing rule at work. Federal narcotics agents had probable cause to believe that a 200-pound double-locked footlocker held marijuana, tracked it from a train through the station to a waiting car, and arrested the defendants as soon as it was lifted into the trunk, after which they seized the footlocker and searched it.26 The search came more than an hour after the agents gained exclusive control of the footlocker and long after the defendants were securely in custody, so it could not be defended as incident to the arrest.27 Nobody could reach into the locker when it was opened, which removed the only reason the arrest rationale offers for dispensing with a warrant. The timing rule has one recognized escape, a legitimate reason for the delay. In United States v. Edwards, police waited ten hours to search the arrestee's clothes for paint chips because it took that long to find substitute clothing, and that reason kept the search within the exception.28
The failure of the arrest rationale does not close the analysis, because a delayed container search that cannot qualify as incident to arrest may still be authorized as an inventory when it follows standardized procedures.29 The inventory answers a different need. Once police lawfully take property into custody, they may list its contents item by item, both to preserve the arrestee's property and to forestall a later claim that some item was never returned.30 That need exists at the station house whether the bag was found at the moment of arrest or an hour before booking, so the inventory does not ask when the container was found relative to the arrest. In Illinois v. Lafayette, an arrestee carried a shoulder bag to the station, and an officer opened it at booking under standard procedure and found amphetamine pills.31 The State had argued, only after the suppression hearing, that the search was a delayed search incident to arrest, and the Court sustained it as an inventory instead.32 Because the inventory is an administrative step that follows arrest and precedes incarceration, the question was whether the booking routine justified opening the bag, and the bag's reach at the time of arrest was beside the point.33
The dissent in Chadwick pointed to the same route. It observed that police may establish a routine of inventorying the contents of any container taken into custody for reasons of security and property conservation, so that officers who bring a suspicious container into their office are not precluded from inventorying it.34 That observation comes from the dissent and is not the majority's holding, but the inventory rule it describes became settled when Lafayette approved stationhouse inventories done under standardized procedures.35 The conditions that make an inventory valid are lawful custody of the property and a routine free of pretext.36 The arrest exception looks at the arrestee's reach during the arrest, while the inventory looks at what police hold and what the department's routine tells them to do with it.
Containers carried in a car raise a related search-incident question that should be kept separate. In New York v. Belton the Court held that, after a lawful custodial arrest of a car's occupant, police may search the passenger compartment as a contemporaneous incident of the arrest, along with any containers in it, reasoning that if the compartment is within the arrestee's reach, so are the containers inside.37 Arizona v. Gant later narrowed that rule to two situations: the arrestee is within reaching distance of the vehicle at the time of the search, or there is reason to believe evidence of the offense of arrest is in the vehicle.38 Neither situation fits a bag the arrestee carries, because police can take the bag from the arrestee at the time of arrest, which leaves the booking inventory as the second basis for opening it.39
Two errors recur on facts of this kind. Some students stop as soon as the search is too late to be incident to arrest and forget that the same bag may qualify as an inventory. Others label every late station-house search an inventory without asking whether a standardized procedure governed it, and that fact is what separates the booking clerk from the detective in the example above. An inventory needs no emergency at the time of arrest. It needs lawful custody and a routine, and a search that has neither is left with no justification at all.
Versus the Automobile Exception
A warrantless look inside a car can rest on two different footings, and the facts of a problem rarely say which one the police are using. The preceding comparison with search incident to arrest turned on timing and reach; this one turns on what triggers the search. The automobile exception lets police search a vehicle without a warrant when they have probable cause to believe it holds contraband or evidence of a crime.41 It began with the observation that a car, unlike a house, can be quickly driven out of the locality before a warrant is obtained, so ready mobility makes the opportunity to search fleeting.42 Later cases added a second foundation, which is that the expectation of privacy in an automobile is significantly less than in a home or office.43 An inventory also opens a car without a warrant, but it asks about custody and routine instead of probable cause, and the two doctrines are easiest to keep apart by comparing what each one demands.
In California v. Carney federal drug agents watched a youth enter a motor home parked in a downtown San Diego lot, kept it under surveillance for about an hour and a quarter, stopped the youth when he left, and learned that he had received marijuana inside; one agent then entered the motor home without a warrant or consent.44 The Court upheld the entry under the automobile exception because the motor home was readily mobile, was licensed to operate on public streets and subject to extensive regulation, and was situated so that an objective observer would see a vehicle in use rather than a residence.45 Each justification does its own work. Without a prompt search the vehicle could have been moved beyond the reach of the police, and pervasive regulation lowered the occupant's expectation of privacy, so together these features justify searching without first going to a magistrate, so long as probable cause supports the search.46
The reduced-privacy premise is not special to the automobile exception. When Carney explained why vehicles receive less protection than homes, it quoted an inventory case, South Dakota v. Opperman, for the point that automobiles are subject to "pervasive and continuing governmental regulation and controls," including periodic inspection and licensing requirements.47 Opperman itself relied on the same lower expectation of privacy in upholding the inventory of an impounded car.48 Both doctrines therefore start from the idea that a car is less private than a home, and they part ways on what protects the owner once the warrant is gone. Under the automobile exception probable cause survives, because mobility and reduced privacy excuse only the warrant.49 Under the inventory probable cause drops out entirely, because the Opperman Court found the probable-cause approach inappropriate there: the standard is "peculiarly related to criminal investigations," and an inventory is not conducted to investigate criminal activity.50
Each exception pairs its breadth with a different safeguard, and the pairing follows from what the police are doing. A search for evidence is an investigative act, and officers who may look wherever evidence could be hidden need a check on that power. Probable cause is that check, because it requires a factual basis for expecting the search to turn something up before the officer opens anything. An inventory is not a search for evidence. The officer does not suspect that anything in particular is in the car and takes the property into custody to protect the owner's belongings, to guard the police against claims over lost or stolen items, and to protect against danger.51 Probable cause would have nothing to attach to in that setting, but dropping it also removes the one thing that would stop an officer from treating a convenient impoundment as a license to rummage. The inventory therefore substitutes two conditions of its own, lawful custody of the property and a standardized procedure free of pretext.52 The routine does the work probable cause does elsewhere, because it fixes in advance what the officer looks at and so leaves little room to turn a caretaking step into an evidence hunt.
The two doctrines also draw the boundaries of a lawful search differently. Under the automobile exception the reach of a warrantless search matches what a warrant would authorize: if probable cause justifies searching a lawfully stopped vehicle, it justifies searching every part of the vehicle and its contents that may conceal the object of the search.53 The object the police are looking for therefore sets the limit, and a closed bag in the trunk falls inside it whenever the object could be in the bag. The reach of an inventory follows its caretaking purposes, which is why the department's routine, and not the officer's suspicion, decides how much of the car gets listed.54
The last difference concerns custody. The automobile exception does not require police to take the car anywhere, whereas an inventory exists only after the car is in police hands. When probable cause is present, police may choose between searching at once and seizing the car until a warrant issues, and in Chambers v. Maroney the Court said that, given probable cause to search, "either course is reasonable under the Fourth Amendment."55 A seizure of that kind is justified by the evidence the police expect to find, and it lasts for the period needed to obtain a warrant.56 An impoundment that supports an inventory has a different source, the department's caretaking practice for vehicles it holds, and the two can follow one another on the same facts. In Florida v. White the police had probable cause to believe that a vehicle itself was subject to forfeiture under state law, though not probable cause to believe it held contraband; the Court allowed them to seize it from a public place without a warrant, and after the seizure the police may conduct a warrantless inventory of the vehicle.57 Because probable cause attached to the car and not to what was inside, the automobile exception would not have reached the contents, and the inventory did.
The usual error is to treat the lower privacy in cars as if it supplied its own justification. Reduced privacy and mobility excuse the warrant, not probable cause, so a hunch about a car on the roadside supports nothing under the automobile exception, however mobile the car is.58 The opposite error is to call any search of a car an inventory because it happened at the station, without asking whether the car was in lawful custody and a standardized procedure governed the search. In Carney the agents had probable cause and a readily mobile vehicle, so no impoundment or routine was needed. Officers who hold a car and lack probable cause have only the inventory, with its demand for custody and a standard procedure.