State v. Wallen
| Citation | 173 N.W.2d 372,185 Neb. 44 |
| Decision Date | 06 January 1970 |
| Docket Number | No. 37352,37352 |
| Parties | STATE of Nebraska, Appellee, v. Edward D. WALLEN, Appellant. |
| Court | Supreme Court of Nebraska |
Syllabus by the Court
1. A police officer, when there is just cause, must not only impound a vehicle from a public highway for its own protection, but should inventory the contents to safeguard the owner and protect against false claims of loss.
2. When the evidence shows a lawful arrest followed by an inventory of the contents of defendant's automobile following its impoundment, and there is reasonable justification for such impoundment, the taking of an inventory for the purpose of protecting defendant's property during defendant's detention and of protecting law enforcement officers from false claims of loss, such inventory is reasonable and lawful, and evidence of crime found while making such inventory will not be suppressed.
3. If during the proper inventory of the contents of an impounded vehicle, evidence of crime is discovered, such evidence may be used to support a charge for the crime indicated.
4. If the arrest of an automobile owner or impoundment of his vehicle was resorted to as a device and pretext for making a general exploratory search of the automobile without a required search warrant, evidence of crime found during the taking of the inventory will be suppressed.
5. Whether or not an inventory of the contents of an impounded automobile of a person in custody was a reasonable and lawful inventory procedure or an unauthorized exploratory search is a factual question to be determined by the court on a motion to suppress.
6. Only unreasonable searches are prohibited by the Fourth Amendment to the Constitution of the United States.
7. In a prosecution for keeping gaming devices adapted, devised, and designed for the purpose of playing a game of chance for money under section 28--945, R.R.S.1943, the evidence must sustain a finding that the gambling devices in evidence were adapted, designed, and kept for the purpose of playing games of chance for money. Possession alone is not enough.
Kerrigan, Line & Martin, Fremont, for appellant.
Clarence A. H. Meyer, Atty. Gen., C. C. Sheldon, Asst. Atty. Gen., Lincoln, for appellee.
Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN and NEWTON, JJ.
Defendant was charged with the offense of keeping gaming devices for the purpose of playing a game of chance for money. A jury was waived and defendant was found guilty by the court and sentenced to pay a fine of $400 and costs. Defendant has appealed.
The evidence shows that on August 14, 1968, guards at the Schribner Air Base reported to the Nebraska State Patrol that an intoxicated motorist with a stalled automobile was found outside the entrance to the air base. A state patrolman arrived at the scene at 11:00 p.m., and the stalled automobile was found in a highway intersection with the intoxicated defendant standing near the car. The car could not be moved by its own power. Defendant was arrested and lodged in jail. The patrolman called the Fremont Gas Market and directed it to remove the automobile to its lot in Fremont. There was clothing hanging in the back of the car and suitcases also on the floor in the rear section, all of which were plainly visible.
The automobile was towed to the fenced lot of the Fremont Gas Market. After placing the defendant in jail, the patrolman went to the Gas Market and proceeded to inventory the contents of the automobile for the purpose of protecting the defendant against loss of the personal property in the automobile and to protect himself against false claims of loss upon their return to the defendant. It was during the course of making the inventory that the trunk of the car was opened with the key found in the switch. Upon opening the trunk and the checking of the contents of a vanity box five pairs of dice were found as well as other recognized gambling paraphernalia. Other dice were found in the glove compartment, some of which were observable through the plastic bag in which they were contained. About the time the inventory was completed, another patrolman appeared on the scene with a search warrant. It is on this evidence that defendant contends that the search and seizure of the gambling devices and paraphernalia was unlawful and that they should have been rejected as evidence against the defendant.
In this case, the defendant was arrested for intoxication. He was standing beside his stalled automobile in a highway intersection. On the defendant being lodged in jail, the duty devolved upon the patrolman to clear the highway by removing the automobile. This he did. The fact that the removal of the automobile was not done pursuant to some state law is not a material factor. His duty to cause the automobile to be removed because of the inability of the defendant to do so is in itself reason enough to support the action taken. Also, in removing the automobile necessary steps are required to be taken to protect the contents of the car for the benefit of the defendant. Taking an inventory of the contents of the automobile to insure the return of all the personal property to the defendant and to protect the patrol against false claim of loss while in the custody of law enforcement officers is a salutary practice whether required by rule or common practice. There is no evidence in this record that the taking of the inventory was a subterfuge for an unlawful search for evidence to convict for crime. The evidence shows that the inventory was taken for the reasons heretofore stated and not to obtain evidence to convict the defendant of any crime. In fact, the evidence shows that defendant was not suspected of any offense, other than intoxication, until the dice and other gaming paraphernalia were discovered during the course of making the inventory. Such a situation does not support any claim of unlawful search or seizure. The taking of the inventory, even if it could properly be defined as a search, is not an unreasonable search and seizure within the constitutional prohibition against 'unreasonable searches and seizures.'
In Heffley v. State, 83 Nev. 100, 423 P.2d 666 (1967), the court in a similar case said:
In a similar case the Supreme Court of Washington stated: 'When, however, the facts indicate a lawful arrest, followed by an inventory of the contents of the automobile preparatory to or following the impoundment of the car, and there is found to be reasonable and proper justification for such impoundment, and where the search is not made as a general exploratory search for the purpose of finding...
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