I. INVENTORY [CASE ONE]
A. Wilford operated in vehicle suffering from multiple equipment violations, and was stopped by Indy Metro Officers. The LEO determined that Wilford’s operator’s license was suspended, and he was arrested for operating while suspended. As neither the owner of the vehicle wasn’t present, the LEO determined to impound the vehicle under the community caretaking function of law enforcement. The vehicle was inventoried, but no inventory list was prepared. A firearm was located in the vehicle and Wilford was charged with, and convicted of, possession of a firearm without a license. At trial, little testimony was elicited regarding the LEO’s reasons for impoundment under the community caretaking function.
Wilford appealed to the Indiana Court of Appeals, arguing that the LEO’s impoundment of the vehicle was improper. The Court of Appeals affirmed the conviction and the Indiana Supreme Court accepted transfer.
B. Result: the Indiana Supreme Court reversed the conviction.
C. Reason: Impoundments are seizures and, therefore, must be reasonable. Impoundments may be undertaken either under a statute, in which case it is deemed reasonable, or under the community caretaking function, in which case the burden is on the state to prove reasonableness. Impoundment under the community caretaking function must be exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity.
Stated differently, impoundment and inventory cannot be used as a substitute for a search warrant, or worse, to search when a search warrant or warrantless search would be improper. Florida v. Wells, 495 U.S. 1 (1990).
In Fair v. State, 627 N.E.2d 427 (Ind. 1993), the Indiana Supreme Court established a two-prong test for the reasonableness of an impoundment under the community caretaking function:
(1) Consistent with objective standards of sound policing, an officer must believe the vehicle poses a threat of harm to the community or is itself imperiled; and
(2) The officer’s decision to impound adhered to established departmental routine or regulation.
The Supreme Court found that the State failed to prove IMPD’s ‘established departmental routine or regulation.’ The law doesn’t necessarily require the admission into evidence of the written SOP on impoundment (although that would clearly be the better method of proof), but detailed testimony about the department’s policy regarding standards and procedures for impoundment and about how the LEO followed the SOP in this particular case must be admitted. The LEO’s testimony in this case simply referred to “our procedures in that situation” was grossly insufficient.
D. Learning points: Either admit into evidence a copy of your departmental SOP on impoundment and when a vehicle must be impounded or testify in detail about the points of the policy/procedure and exactly how you followed that SOP in this case.
E. Citation: Wilford v. State. 50 N.E.3d 371 (Ind. 2016).
II. INVENTORY [CASE TWO]
A. Facts: A LEO stopped Rhodes for speeding, but rather than pulling to the side of the road, he pulled into the driveway of a private residence. Rhodes initially told the LEO that the residence was owned by a friend, but later admitted that he didn’t know the owner and pulled into the driveway in an effort to avoid the LEO.
Rhodes’ operator’s license was suspended which resulted in his arrest. The LEO decided to impound the vehicle and conducted and inventory; however, the LEO neglected to prepare a written record of the inventory. A small amount of marijuana was discovered. The only documentation of the steps undertaken and the items located was the LEO’s case report, and then the only items noted were those that supported the possession of marijuana charge. At some point in this chain of events, the homeowner came outside to “’make sure the car was not going to be left in the driveway.’”
Rhodes moved to suppress the marijuana, which the trial court denied. He was subsequently convicted at a bench trial of possession of marijuana, a class D felony (based upon the existence of a prior conviction), and he appealed. He argued that the inventory was faulty and was, in fact, an unconstitutional search under the 4th Amendment and Article 1, Section 11, of the Indiana Constitution.
B. Result: The Indiana Court of Appeals reversed the conviction.
C. Reason: The Court first related the two elements of the Fair v. State test, then stated: “The inventory search was unreasonable because the State did not prove the scope of the search complied with official police policy.”
The Court noted that evidence must be presented to the trial court that not only explains the requirements for an inventory under departmental SOP, but also that evidence regarding the steps undertaken by the LEO complied with that policy. Stated differently, the LEO must testify that he did exactly what the SOP required him to do. In this case, the LEO’s only testimony on that point consisted of the following statement: “For an impounded vehicle, we will search the passenger compartment area as well as the glove box if it’s unlocked and the trunk if it’s unlocked.” The Court found this bare statement insufficient.
D. Learning points:
1. Become intimately familiar with your department’s inventory SOP.
2. Always (did I say ‘always’?) memorialize your inventory in a written document.
3. Document all items located in the inventory, not just those items that support a criminal charge.
4. Ensure that you have followed all steps outlined in your department’s SOP.
5. Testify to all of the above in the suppression hearing and at trial.
E. Citation: Rhodes v. State, 50 N.E.3d 378 (Ind.App. 2016).
III. INVENTORY [CASE THREE]
A. Facts: Sams had finished his work shift remodeling homes and drove away in a pickup truck owned by a family member. Unfortunately, his drivers license had been suspended. Due to the late hour, Sams went through a fast food drive-through and was eating his meal at the time of the traffic stop.
LEOS Jones and Tate were patrolling and observed Sams’ pickup’s taillights weren’t functioning. After stopping for the LEOs, Sams produced a registration and an Indiana ID card, but continued eating his hamburger during the stop. At this moment, the fast food bag was on the console between the two front seats. His criminal history indicated a prior DWS conviction, making this offense a misdemeanor.
The LEOs decided to summons Sams for the misdemeanor but to impound and inventory the truck. After receiving the paperwork, Sams walked to a nearby gas station to await a ride. In the meantime, another LEO, Lee, arrived to assist. Jones and Lee performed the inventory. The officers noticed that the fast food bag had been neatly folded several times and placed on the back passenger side floor. Jones told Lee to be certain to examine the bag “just to be sure nothing’s in it.” Lee found a hamburger box inside the bag, and inside the hamburger box was lettuce, ketchup, and 25 grams of methamphetamine.
The LEOs found Sams at the gas station and arrested him for the dope. They then returned and completed the inventory form for their department. The LEOs replaced the items where initially found to take photographs. Sams was convicted of class A misdemeanor DWS and level 4 possession of methamphetamine. He appealed, arguing that the methamphetamine was discovered as the result of an illegal search and seizure.
B. Result: The Indiana Court of Appeals reversed the conviction.
C. Reason: The Court reviewed several cases on inventory and grouped them into three broad categories: the ‘no policy’ inventory cases, the ‘minor deviation’ cases, and the ‘major deviation’ cases. The Court stated:
“The State almost always prevails in the “minor deviation” cases because
there is no basic inference of pretext. The State always loses the “no policy”
cases because the search is totally, and therefore excessively, discretionary.
The “major deviation” cases are difficult to generalize about, turning on whether the search nonetheless fulfilled its administrative purposes and on whether the State can dispel inferences of pretext.”
The evils identified by the Court was unbridled discretion of LEOs and failure to follow departmental SOPs to the letter. In this case, because the SOP required that “all” items be listed on the inventory, the Court hammered the LEOs because they didn’t list “all” personal property and “all” vehicle accessories. The LEOs listed only those items that they believed were “valuable”, not all items regardless of value. Moreover, the Court criticized the SOP for failing to define what was ‘valuable’, which allowed the LEOs too much discretion. Further, because the inventory SOP stated that an inventory is triggered only by an arrest of the subject, yet they began this inventory BEFORE Sams was arrested, the LEOs violated the SOP.
The LEOs’ stated procedure was to only inventory items that were ‘valuable’, or as one LEO put it, “stuff that you would be liable for.” The Court believed that a used fast food bag would not be considered ‘valuable’ and therefore the LEOs should not have looked inside of it because it was the equivalent of trash. Finally, as to the opening of containers, the Court found it inconsistent that the LEOs opened a used fast food bag (a container) but didn’t open the orange gasoline can with spout (a container). The Court determined that either no containers should be opened or all containers must be opened for inventory purposes.
As a result, the Court held that the inventory was a pretextual search and ordered the dope suppressed and the conviction reversed.
D. Learning points:
1. Departmental inventory SOPs MUST be in writing [contrary to Wilford?].
2. Departmental inventory SOPs must be specific enough to eliminate a LEO’s unbridled discretion, at least specifying when a vehicle should be impounded, what areas to search, which items must be specifically described (definition of ‘valuable’), whether closed/locked containers must be opened, and the specificity of description of items on the inventory.
3. LEOs must follow the inventory protocol without deviation.
4. Ensure that an inventory report form is completed appropriately and submitted.
5. Testify to all of the above in the suppression hearing and at trial.
E. Citation: Sams v. State, ___ N.E.3d ___ (Ind.App. February 21, 2017).