Lack of Written Policy Invalidates Vehicle Inventory Searches

by | April 28, 2020

United States v. Alexander, 954 F.3d 910 (6th Cir. 2020)

An officer was investigating information that methamphetamine was being sold at the home of Brandon Alexander’s mother. The officer learned Alexander had a suspended driver license. Seeing Alexander drive a Ford SUV away from his mother’s house, the officer stopped Alexander. As he approached Alexander’s car, the officer saw a zippered bank deposit bag that appeared to have “a large quantity of money in it” on the front passenger seat. He also saw a safe with a digital keypad on the back seat.

Alexander refused consent to search the car. Acting on the department’s orally transmitted inventory procedure, the officer conducted a “cab to trunk” search of the SUV. He found a baggie with methamphetamine residue, digital scales and $11,560 in cash, as well as 35 grams of methamphetamine in Alexander’s waistband. The officer impounded the SUV. The next day, the officer obtained a warrant to search the safe and found a loaded gun and Alexander’s wallet in it.

Best practices and numerous court admonishments prescribe that an agency have a written vehicle inventory policy.

Nearly two weeks later, the same officer saw Alexander leave his mother’s house, this time driving a Lincoln. The officer radioed to another officer to stop Alexander. The first officer arrived at the traffic stop and arrested Alexander pursuant to an arrest warrant based on the gun found in the safe during the first traffic stop. When the officers asked Alexander whether they could search the Lincoln, Alexander replied, “I don’t care.” They searched and found 113 grams of methamphetamine in the false bottom of a WD-40 can. Alexander later claimed he did not mean his statement to imply that he consented to the search of the Lincoln.

Alexander asked the trial court to suppress both searches. The judge ruled each of the searches was a valid inventory search. The court of appeals considered the propriety of the inventory searches based on the department’s oral policy.

The inventory search exception to the Fourth Amendment’s warrant requirement has been recognized by the Supreme Court for many years. When officers lawfully take custody of a vehicle, they may conduct an inventory search to catalogue its contents pursuant to standardized criteria (Florida v. Wells, 495 U.S. 1 (1990)). The Court has permitted warrantless inventory searches in order to protect the owner’s property while in police custody, protect police against claims over lost or stolen property, and to protect the police and public from unknown dangers that may be located in the vehicle. The Supreme Court has not—to date—required that inventory policies be written in order to qualify as “standardized criteria.” Nonetheless, numerous courts have held that an explicit written inventory policy is the best way to meet the Supreme Court test of “standardized criteria.”

Acting on the department’s orally transmitted inventory procedure, the officer conducted a “cab to trunk” search of the SUV.

The court of appeals stated the officer was not guided by department-issued inventory search regulations and that he followed his own practice for conducting inventory searches “from cab to trunk.” There was no evidence of any department standard procedures for how inventory searches should be conducted. “The critical point here is that inventory searches are valid only to the extent that officers follow a ‘standardized criteria … or established routine’ to assure that inventory searches are not a ‘ruse for a general rummaging in order to discover incriminating evidence.’” In other words, the court of appeals determined the department’s oral tradition for inventory searches failed to meet the Supreme Court test of “standardized criteria.”

Despite the invalid inventory searches, the court of appeals held the evidence from both searches was properly admissible. The first search could be upheld under inevitable discovery doctrine. Alexander was arrested for driving on a suspended license. The search incident to his arrest revealed methamphetamine in his waistband. That discovery supported a search of the vehicle incident to arrest under the Gant doctrine: Police may conduct a search of a vehicle incident to a lawful arrest “when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle” (Arizona v. Gant, 556 U.S. 332 (2009)). The second search could be upheld as a valid consent search.

Gambling on whether the court viewed the nuances of the Gant decision as supporting a search incident to arrest once Alexander was out of the car—and risking that the court would agree with Alexander that he had not actually consented to the search of the Lincoln—was unnecessary. Best practices and numerous court admonishments prescribe that an agency have a written vehicle inventory policy. Both the inventory searches in this case would have easily been authorized by Lexipol’s Vehicle Towing and Release Policy. Protect officers and preserve evidence with a proper policy.

This blog was featured in our Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys. Subscribe here!

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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