E-Newsletter Edition: August 27, 2009
Response Provided By: Brian S. Batterton, J.D.
Always note that state law may be more restrictive on police power than the U.S. Constitution.
Our vehicle impound policy currently states that without the consent of the owner, locked containers are to be sealed with evidence tape and noted on the impound sheet. According to Opperman (See AZ v Gant: Inventory Searches), if our policy were to authorize the opening of all locked containers, in all vehicles during impound inventories, would this be legal, assuming the underlying impound of the vehicle was lawful for the proper purpose? [This question was posed by a police officer in the State of Georgia.]
In South Dakota v. Opperman,i the United States Supreme Court held that a locked automobile that is being impounded for a parking violation may be unlocked and inventoried, as long as the police department has a policy governing such impounds. The three purposes of the inventory were (1) to protect the property of the owner, (2) to protect the police from dangerous object within the vehicle and (3) to protect the police from false allegations of theft.
Further, in Florida v. Wells,ii (Also referenced in AZ v Gant: Inventory Searches) the United States Supreme Court spoke to the issue of locked containers. In this case, a Florida trooper stopped wells for speeding and ultimately arrested him for DUI. The trooper told Wells that the car would be impound and he obtained Wells’ permission to open the trunk. During the inventory search of the vehicle, a locked suitcase was located in the trunk. The suitcase was opened and a large quantity of marijuana was located. Ultimately, the Supreme Court of Florida held that the evidence should be suppressed because the Florida Highway Patrol did not have a vehicle inventory policy that required the opening of all containers. The case was appealed to the United States Supreme Court and they affirmed the decision of the Florida Supreme Court. Specifically, the United States Supreme Court stated
A police officer may be allowed sufficient latitude to determine whether a particular container should or should not be opened in light of the nature of the search and characteristics of the container itself. Thus, while policies of opening all containers or of opening no containers are unquestionably permissible, it would be equally permissible, for example, to allow the opening of closed containers whose contents officers determine they are unable to ascertain from examining the containers exteriors. The allowance of the exercise of judgment based on concerns related to the purpose of the inventory search does not violate the Fourth Amendment.iii [emphasis added]
Simply put, the Supreme Court stated the following:
- If department policy is NOT to open containers that are closed (locked), that policy is reasonable under the Fourth Amendment.iv
- If department policy is to open ALL containers that are closed (locked), that policy would also be reasonable under the Fourth Amendment. Further, this policy could allow for some discretion, for example to allow the opening of a closed container when officers are unable to determine the contents of the container and opening the container is necessary to (1) protect the owners property, (2) protect the police from dangerous objects, or (3) protect the police from false allegations of theft. However, if there is discretion, it must be limited by policy to some set criteria.v
- The department policy must address the opening of containers because an inventory search must not be a ruse for a general search intended to discover evidence of crime.vi
The Court of Appeals of Georgia has also addressed the issue of the inventory search of closed and locked containers. Specifically, in Taylor v. State, the Court of Appeals of Georgia followed the above rule from Wells and allowed the inventory search of a locked briefcase pursuant to jail policy when the briefcase was in possession of person arrested for drug offenses.vii Further, in Staley v. State, the Court of Appeals of Georgia held that “police department policy regarding the opening of closed containers during inventory searches governs the reasonableness of an inventory search.”viii
In conclusion, it would be reasonable under the Fourth Amendment for a police department in Georgia to have an inventory policy that states that an officer shall open all closed containers (including locked containers) during a vehicle inventory if necessary to (1) protect the owners property, (2) protect the officers from dangerous objects, or (3) to protect the police from false allegations of theft. This policy would comply with the United States Supreme Court’s decision in Florida v. Wells, and based on Taylor v. State and Staley v. State, it appears that Georgia follows the United States Supreme Courts rule in Wells. However, if a police department’s policy does not state that closed (included locked) containers should be opened and inventoried, any evidence found during such a search would be held to be an unreasonable search.
i 428 U.S. 364 (1976)
ii 495 U.S. 1 (1990)
iii Wells, 495 U.S. at 6-7
vi Id.at 4
vii Taylor v. State, 228 Ga. App. 325 (491 S.E.2d 417)(1997)
viiii Id.at 326 (citing Staley v. State, 224 Ga. App. 806 (482 S.E.2d 459)(1997))