Taking the Backpack (or Purse) Prior to the Inventory
by: Ryan • February 14, 2012 • no comments
UPDATE: Well, it's still a nice opinion, but apparently we've already won that issue in 2009 in State v. Sparks, which the opinion notes, of course. I'm sure I read Sparks when it first came out and was excited at the time. One of the advantages of having a senior moment, of course, is you get to re-experience small surprises.
The press release in State v. Dimmick is out, though the COA's opinion isn't due for another hour or two. Expect Alex's analysis of all of today's opinions later today. Nevertheless, I wanted to bring Dimmick to your attention immediately, because it appears to address an issue that has been bedeviling defense lawyers for years. I've had this fight, and I know a number of other attorneys have as well. Sometimes it has prevailed, sometimes not, depending more often on the judge than the specific facts.
Anyway, the issue is this. A defendant gets pulled over, and for some reason the police have authority to tow the car. (No insurance, perhaps., or the driver's ODL is suspended.) The defendant - who may be a driver or passenger - is free to leave, and he/she wants to take his backpack/purse. The officer says no, because he's got to inventory the vehicle first, and that inventory includes the contents of the vehicle at that very moment.
On its face, this makes no sense, because the purpose of an inventory is to prevent - during the time the vehicle is towed and stored away at the impound lot - both the loss of valuables and false claims regarding the loss of valuables. If the purse or backpack is removed from the vehicle by its owner before it is towed, then the potential disappearance of valuables from the purse or backpack during the impound - the very risk the inventory is supposed to protect against - is already eliminated.
But the officer wants to inventory those items anyway because the inventory itself was a rationalize for an otherwise unconstitutional search of the defendant's belongings.
Anyway, here's what today's press release says:
According to defendant, although police had authority to tow the vehicle after discovering he had an expired insurance card, and therefore also had authority to conduct an inventory search, the inventory did not permit them to prevent him from taking the backpack out of the car and carrying it away. . . . Held: The backpack and the evidence found therein should have been suppressed because the city's impoundment policy did not address the officer's authority to seize portable closed containers located within the vehicle at the time it was stopped, nor did the policy specify that items present in the vehicle at the time it was stopped must be inventoried. Rather, the officer was left to exercise his discretion to determine whether the backpack should have been seized as part of the impoundment; therefore, the seizure of the backpack was invalid.
This isn't a complete win, since the press release suggests that the policy can be changed to permit an inventory of "portable closed containers" that are present in the vehicle at the time it is stopped. But I'm not so sure that such a change will happen - depends on who is writing the policy, I guess - and there's no reason the COA has to render an opinion on the constitutionality of a policy that hasn't yet been written.
Anyway, unless the opinion deviates significantly from the press release, this is a big and important win.
