711 P.2d 264 (Utah 1985), 19402, State v. Hygh

Docket Nº:19402.
Citation:711 P.2d 264
Opinion Judge:HALL, Chief Justice:
Party Name:STATE of Utah, Plaintiff and Respondent, v. Gillis HYGH, Defendant and Appellant.
Attorney:Edward Brass, Salt Lake City, for defendant and appellant. David L. Wilkinson, Atty. Gen., J. Stephen Mikita, Salt Lake City, for plaintiff and respondent.
Case Date:August 16, 1985
Court:Supreme Court of Utah

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711 P.2d 264 (Utah 1985)

STATE of Utah, Plaintiff and Respondent,


Gillis HYGH, Defendant and Appellant.

No. 19402.

Supreme Court of Utah.

August 16, 1985

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[Copyrighted Material Omitted]

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Edward Brass, Salt Lake City, for defendant and appellant.

David L. Wilkinson, Atty. Gen., J. Stephen Mikita, Salt Lake City, for plaintiff and respondent.

HALL, Chief Justice:

Defendant Gillis Hygh appeals a conviction of aggravated robbery, a first degree felony. U.C.A., 1953, § 76-6-302 (1978). Defendant alleges that the warrantless "inventory search" of his automobile after he was placed under custodial arrest was unlawful. We agree.

At about 10:00 p.m. on December 31, 1982, a man entered a service station in Salt Lake City and asked for a pack of cigarettes. As the clerk handed the customer the cigarettes, the customer pulled a .22 caliber revolver from under his coat and ordered the clerk to empty the cash register. The clerk did so, putting approximately $350 into a paper bag. As he was emptying the register, the clerk activated a surveillance camera that had been installed by the Salt Lake City Police Department the previous month. After the robber left, the clerk called the police. The police had also been alerted to the robbery by an alarm in the police dispatcher's office which went off when the surveillance camera was activated. The police arrived shortly thereafter. The film from the surveillance camera was unloaded by a detective and taken for developing. Several of the developed pictures showing the robber's face and clothing were posted at city police stations on the line-up boards.

Immediately after the robbery, the clerk identified the robber to police as a black man wearing a rust or red colored ski mask on his head but not over his face. The robber was also wearing a khaki colored coat with "furry" lining and with a rip over the left pocket. The surveillance camera pictures showed this description to be accurate.

On January 6, 1983, a Salt Lake City police officer, Officer Foster, after stopping for a traffic light in the left lane next to defendant's car, noticed an expired rejected safety inspection sticker 1 on defendant's lower left front windshield. Officer Foster also noticed that the driver resembled the individual in the photograph of the robbery suspect posted at the police station. The officer testified at the hearing to suppress the evidence taken from defendant's car that he stopped defendant's car because of the expired safety inspection sticker. 2

After stopping defendant's car, Foster sent a second officer to the police station to get the posted photo of the robbery suspect. Foster then checked defendant's driver's license and registration. The car was registered to defendant, but defendant had no driver's license with him. A radio

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call to the police dispatcher verified that defendant had a license, but also revealed two outstanding misdemeanor arrest warrants against defendant. Officer Foster placed defendant under arrest on the basis of those warrants, handcuffed him, and put him in the patrol car.

Foster then ascertained that defendant's passenger was not a licensed driver and called for an impound wrecker to tow the car away.

After the second officer returned with the photo, Officer Foster conducted a search of defendant's car with the photo in his hand. 3 He did not use an inventory sheet and did not make a list of the items found in the car. 4 In the trunk, the officer found several jackets, a cap, several shirts, and a ski mask lying over the spare tire. The officer also found an unzipped plastic gym bag. The officer looked inside the bag and found a .22 caliber revolver. The gas station clerk later identified the ski mask, one of the jackets, and the gun as those used by the robber. The clerk also identified defendant as the robber. After the search of the car, Officer Foster transported defendant to the police station. Officer Foster informed the robbery detective that he believed defendant was the robber of the service station. The detective questioned defendant, then ordered Officer Foster to place defendant under arrest for aggravated robbery.

At a pretrial suppression hearing, defendant asked to have the clothing items and the revolver taken from the car suppressed as being the result of a pretextual, warrantless search. The motion was denied by the trial court on the basis that the search was a proper inventory search. At a trial before a jury, defendant was convicted of aggravated robbery. Defendant appeals, seeking a reversal of that conviction and a new trial.

Article I, section 14 of the Utah State Constitution, and the fourth amendment to the United States Constitution prohibit unreasonable searches and seizures. In order for a search to be constitutionally permissible, a search warrant issued by a neutral magistrate and based upon probable cause is required. There are, however, several exceptions to the warrant requirement. These include a limited search incident to a lawful arrest; 5 search of an automobile based on probable cause that it contains contraband; 6 and seizure of evidence in plain view by one with a lawful right to be in a position to so observe it. 7

It is also well established that an inventory search constitutes an exception to the warrant requirement. 8 A warrantless search of an impounded vehicle for the purposes of protecting the police and public from danger, avoiding police liability for lost or stolen property, and protecting the owner's property is permitted by the fourth amendment and article I, section 14 of the Utah State Constitution. 9

Because inventories promote such important interests and are not investigatory in purpose, they do not implicate "the interests which are protected when searches are conditioned on warrants." 10 Therefore, inventory searches are not per se unreasonable within the meaning of the fourth amendment and article I, section 14.

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Contraband or other evidence of crime discovered in a true inventory search may be seized without a warrant and introduced into evidence at trial. 11 However, the inventory exception does not apply when the inventory is merely "a pretext concealing an investigatory police motive." 12 Fundamental constitutional guarantees against unreasonable searches cannot be evaded by labeling them "inventory" searches.

In order to support a finding that a valid inventory search has taken place, the court must first determine whether there was reasonable and proper justification for the impoundment of the vehicle. 13 This justification, and thus lawful impoundment, can be had either through explicit statutory authorization or by the circumstances surrounding the initial stop. 14 If impoundment was neither authorized nor necessary, the search was unreasonable. 15

Utah's statutes give a police department authority to impound vehicles in several situations. Vehicles may lawfully be impounded when they are used to transport controlled substances, U.C.A., 1953, § 58-37-13; when the vehicle is improperly registered or stolen, U.C.A., 1953, § 41-1-115; or when a vehicle is abandoned, U.C.A., 1953, § 41-6-116.10. No specific statutory authority exists authorizing impound of a vehicle stopped and parked on the street after the driver has been arrested. Therefore, we must look to the circumstances surrounding the stop to determine whether the impound was reasonable.

It is the burden of the State to establish the necessity for the taking and the inventory of the vehicle. 16 In Salt Lake City, the police department has standards set forth in a procedural order 17 whose purpose is to implement a procedure for the handling of impounds and the use of wreckers. Under this order, city police officers are directed to impound a motor vehicle of an arrested person. However, the vehicle may be released at the scene to a party designated by the owner rather than be impounded. A release form is provided to the officers to be signed by the person arrested designating an individual to take charge of the vehicle and releasing the department and its officers from all liability.

Officer Foster testified that he did ascertain that defendant's passenger was not a licensed driver. However, defendant was given no opportunity to arrange for disposition of his own car. The officer neither asked defendant whether there was someone who could come and get the car nor asked the passenger whether she could take possession of the contents of the car or get someone to come and get the car.

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The departmental order next establishes procedures affecting all impounds. In pertinent part, that order states:


  1. When an impound occurs with the owner present, the officer should ask the owner if anything of value is in the vehicle, make certain the owner knows what steps are being taken to safeguard such property, and proceed as follows:

a. The officer and the wrecker driver should make a thorough inventory of the automobile, and fill in the impound slip completely, listing all necessary equipment on the car, in the car, and in the trunk.

b. Any item lying loose in the vehicle should...

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