Warrant Exception:  Inventory Searches

When police impound an illegally parked car, they may tow it to a government parking lot. Similarly, police may tow the car of a driver who is arrested for a traffic violation. These are just two of the many ways in which government agents can lawfully take possession of property. Another common scenario arises when police store the effects of a person who is jailed, keeping them until the person is released. The Court has held that government officials may search property that comes into their possession in circumstances such as these, as long as they follow proper procedures.  South Dakota v. Opperman (1976).

Notes, Comments, and Questions 

In Illinois v. Lafayette, 462 U.S. 640 (1983), the Court applied Opperman to a police search of the “purse-type shoulder bag” of “an arrested person [who] arrive[d] at a police station.” Because the search could not be deemed “incident” to the arrest, the Court considered “whether, consistent with the Fourth Amendment, it is reasonable for police to search the personal effects of a person under lawful arrest as part of the routine administrative procedure at a police stationhouse incident to booking and jailing the suspect.” The Court found the question fairly straightforward and resolved it as follows:

“At the stationhouse, it is entirely proper for police to remove and list or inventory property found on the person or in the possession of an arrested person who is to be jailed. A range of governmental interests support an inventory process. It is not unheard of for persons employed in police activities to steal property taken from arrested persons; similarly, arrested persons have been known to make false claims regarding what was taken from their possession at the stationhouse. A standardized procedure for making a list or inventory as soon as reasonable after reaching the stationhouse not only deters false claims but also inhibits theft or careless handling of articles taken from the arrested person. Arrested persons have also been known to injure themselves—or others—with belts, knives, drugs or other items on their person while being detained. Dangerous instrumentalities—such as razor blades, bombs, or weapons—can be concealed in innocent-looking articles taken from the arrestee’s possession. The bare recital of these mundane realities justifies reasonable measures by police to limit these risks—either while the items are in police possession or at the time they are returned to the arrestee upon his release.”

Because the Court found such searches to be reasonable regardless of whether officials feared any particular bag possessed by an arrestee, the Court held that neither probable cause or any other form of individualized suspicion was needed for inventory searches of an arrestee’s belongings prior to incarceration, “in accordance with established inventory procedures.”

By contrast, in Florida v. Wells, 495 U.S. 1 (1990), the Court found that because the highway patrol lacked “standardized criteria” or an “established routine” with respect to opening closed containers while inventorying a car, officers violated the Fourth Amendment when opening a locked suitcase found in the trunk of an impounded car. The Court said such criteria were needed because of “the principle that an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence.” In sum, departments have wide latitude to set inventory policies and to search cars, bags, and other items pursuant to such policies. But without a preexisting policy, searches lose the presumption of reasonableness.

A former student of your authors once told a story about Gant drawn from the student’s experience as a police officer.53 He began by describing how police reacted to the Court’s decision in Gant.

“Post-Gant, law enforcement agencies scurried to train officers on search of automobiles incident to lawful arrest. A tool once frequently and heavily relied on, [SILA] was no longer an option for officers looking to get into vehicles without the availability of the automobile exception outlined in Carroll. This was particularly frustrating on pretext stops where officers would arrest local drug dealers and criminals for driver’s license violations or other mundane crimes to get into vehicles where evidence of the more serious, and sometimes violent, crimes were concealed.”

Police adjusted their tactics: “The response was shoring up vehicle tow, impound, and inventory policies.” In other words, because police could not search nearly as many cars incident to arrest, police increased the number of cars they decided to tow after arrests.

Here is where the story gets exciting: “In 2010, Officers … stopped a vehicle after complaints of careless and imprudent driving. The driver, 20, did not have a driver’s license. Officer attempts to contact the vehicle owner to remove it from the side of the road were unsuccessful. Pursuant to department policy, officers contacted a tow truck and conducted an inventory search where they located the owner of the vehicle, mother of the driver, dead in the trunk.”

As the student summed up, “Sometimes there IS a body in the trunk.”