City of Danville v. Dawson

• Decision Date: 09 May 1975
• Citation: 528 S.W.2d 687
• Parties: Commonwealth of Kentucky, CITY OF DANVILLE, Appellant, v. Minnie Graham DAWSON, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 687

528 S.W.2d 687

Commonwealth of Kentucky, CITY OF DANVILLE, Appellant, v. Minnie Graham DAWSON, Appellee.

Court of Appeals of Kentucky.

May 9, 1975.

Ed W. Hancock, Atty. Gen., Kenneth A. Howe, Jr., Asst. Deputy Atty. Gen., Frankfort, J. Thomas Hensley, Hensley & Smith, Danville, William W. Pollard, Asst. Atty. Gen., for appellant.

James F. Clay, Jr., Clay & Clay, Danville, for appellee.

J. Vincent Aprile, II, Asst. Public Defender, Frankfort, for amicus curiae.

PALMORE, Justice.

Shortly after 1:00 A.M. on February 6, 1974, police officers of the City of Danville observed an automobile being operated in an erratic manner and arrested its driver, Minnie Dawson, for the offense of driving while under the influence of intoxicating beverages, committed in their presence. KRS 189.520. While she was sitting in the police cruiser under arrest the officers called for a wrecker to remove her automobile to a place of storage and, in accordance with a standard policy of the Danville Police Department, proceeded to inventory its contents. In the process they opened the trunk of Mrs. Dawson's car and discovered two cases of beer and a large quantity of whiskey in half-pint bottles. This led to an additional charge against her for illegally transporting alcoholic beverages for purpose of sale in a dry territory. KRS 242.230. Eventually she was convicted on the drunk-driving charge, but the trial court directed a verdict of acquittal on the transporting charge after excluding evidence of the liquor and beer upon the ground that it had been obtained by an illegal search in violation of the Fourth Amendment. The Commonwealth appeals, seeking a certification of the law.

The Commonwealth's contention is that the evidence was admissible under 'the rule that evidence of crime found in plain view by law enforcement officers who enter an impounded vehicle without a search warrant for the purpose of inventory and storage of effects is admissible over Fourth Amendment objections,' citing Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968), and Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973).

In Harris, the automobile in which the incriminating evidence was found had been lawfully impounded as evidence following the arrest of its owner on a robbery charge. A regulation of the police department required officers to search an impounded vehicle, remove all valuables from it, and leave a property tag listing appropriate information. In the course of executing this procedure at a storage lot to which the automobile had been towed, the arresting officer rolled up the car windows and locked the doors. When he opened the door on the passenger side he discovered an automobile registration card, issued to the victim of the robbery, lying face up on the metal stripping over which the door opened and closed. The decision of the Supreme Court with respect to the admissibility of this evidence was as follows (emphasis added):

'The sole question for our consideration is whether the officer discovered the registration card by means of an illegal search. We hold that he did not. The admissibility of evidence found as a result of a search under the police regulation is not presented by this case. The precise and detailed findings of the District Court, accepted by the Court of Appeals, were to the effect that the discovery of the card was not the result of a search of the car, but of a measure taken to protect the car while it was in police custody. Nothing in the Fourth Amendment requires the police to obtain a warrant in these narrow circumstances.

'Once the door had lawfully been opened, the registration card, with the name of the robbery victim on it, was plainly visible. It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.'

In Dombrowski, the automobile in question had been wrecked on the highway and had to be removed at the instance of police officers investigating the accident. The driver was taken to a hospital in a drunken condition. He was an off-duty Chicago policeman, and the local officers believed that he was required to carry his service revolver at all times. In an effort to find such a weapon, in order that it might not fall into unauthorized hands, they searched the automobile at the storage lot to which it had been removed. During the course of the search they discovered incriminating evidence of a homicide committed by the driver. The Supreme Court held this evidence admissible upon the ground that under the circumstances of the particular case the search was not unreasonable:

'Where, as here, the trunk of an automobile, which the officer reasonably believed to contain a gun, was vulnerable to intrusion by vandals, we hold that the search was not 'unreasonable' within the meaning of the Fourth and Fourteenth Amendments.' 413 U.S. at p. 448, 93 S.Ct. at p. 2531.

Thus far the Supreme Court has not decided whether or under exactly what circumstances an inventory procedure, either ad hoc or conducted pursuant to regulation or custom, is a search. Other courts have deployed to all points of the compass. See annotation at 10 A.L.R.3d (1974 Supp.), p. 8. An objective and well-reasoned analysis is presented in United States v. Lawson, 487 F.2d 468 (8th Cir., 1973), in which, as in this case, there was 'no assertion that the search . . . (could) . . . be justified upon any ground other than as an inventory search.' 487 F.2d at p. 469.

Lawson...