Following Inventory Policy Saves Search

by | July 18, 2022

United States v. Cohen, 2022 WL 2444441 (11th Cir. 2022)

Officers saw Devon Cohen run a stop sign. Cohen pulled into an apartment parking lot and got out of the car. The officers ordered Cohen to get back in the car, but he repeatedly refused. Officers then placed Cohen under arrest for resisting arrest. An officer then discovered Cohen’s license was suspended.

The officers learned that Cohen was driving a car registered to Enterprise Rent-A-Car and that it had been rented by the mother of Cohen’s girlfriend. She had given permission for Cohen to drive the car. Although the apartment parking lot did not enforce towing until 10:00 p.m., officers arranged for the vehicle to be towed to Enterprise. The officers conducted an inventory search of the vehicle before releasing it to the tow operator, finding a gun in the center console. Cohen told the officers he knew the gun was there. After the inventory search was complete, the towing company returned the car to Enterprise.

Cohen was convicted for being a felon in possession of a firearm and ammunition. Prior to trial, he asked the trial court to suppress the gun. The court declined, ruling that Cohen did not have Fourth Amendment standing to challenge the search because his license was suspended and he was not an authorized driver on the rental car agreement. Cohen appealed, arguing that driving with a suspended license does not negate Fourth Amendment standing. Cohen also claimed the inventory search was improper because the prosecution failed to demonstrate that the search complied with department policy.

It was the officers’ adherence to policy that led to Cohen’s successful prosecution.

The court of appeals held that Cohen did have standing to challenge the inventory search. Notwithstanding, it affirmed the denial of his suppression motion on the basis that the inventory search was lawful. Based on evidence showing the officers followed the department’s standard inventory policy, the court of appeals determined the trial court properly ruled that officers performed a permissible impound and inventory of Cohen’s rental car.

It was the officers’ adherence to policy that led to Cohen’s successful prosecution. Officers may conduct inventories of seized property (Colorado v. Bertine, 479 U.S. 367 (1987)). The justification for inventories rest on three needs: “the protection of the owner’s property while it remains in police custody; the protection of the police against claims or disputes over lost or stolen property; and the protection of the police from potential danger” (South Dakota v. Opperman, 428 U.S. 364 (1976)).

The inventory must be conducted in accordance with a standard policy, such as Lexipol’s Vehicle Towing and Release Policy (Florida v. Wells, 495 U.S. 1 (1990)). A proper written policy leaves little room for unlawful discretion. The policy must define the scope of the inventory, which for a car may extend to the glove compartment, trunk and closed containers if so directed by the policy (United States v. Thompson, 29 F.3d 62 (2nd Cir. 1994)). An inventory may also be taken of an arrestee’s property during the booking process (United States v. Edwards, 415 U.S. 800 (1974)).

Even though another driver may be available to remove the car from an arrest scene, or even if the car may be towed to the owner’s home rather than a police impound, the impound and subsequent inventory is permissible (Colorado v. Bertine, 479 U.S. 367 (1987) – Police need not give driver “an opportunity to make alternative arrangements” that avoid impoundment; United States v. Cherry, 436 F.3d 769 (7th Cir. 2006) – Police need not offer driver choice of towing services and destinations).

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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