Drinkard v. State

• Decision Date: 30 July 1979
• Citation: 584 S.W.2d 650
• Parties: Frank C. DRINKARD, Petitioner, v. STATE of Tennessee, Respondent. 584 S.W.2d 650
• Court: Tennessee Supreme Court

Page 650

584 S.W.2d 650

Frank C. DRINKARD, Petitioner, v. STATE of Tennessee, Respondent.

584 S.W.2d 650

Supreme Court of Tennessee.

July 30, 1979.

Hughie Ragan, Jackson, for petitioner.

Robert A. Grunow, Asst. Atty. Gen., Nashville, for respondent; Brooks McLemore, Jr., Atty. Gen., Nashville, of counsel.

OPINION

BROCK, Chief Justice.

Defendant, Frank C. Drinkard, was convicted of simple possession of marijuana and received a suspended sentence of eleven months, twenty-nine days. The Court of Criminal Appeals affirmed the conviction and defendant petitioned this Court for certiorari review.

Although defendant raises several issues, we deem it necessary to consider only his claim that the lower courts erred in holding that police had a right to impound his automobile and conduct a warrantless search of the vehicle when at the time of his arrest for a traffic violation defendant sought permission to let his passenger companion take the car as an alternative to impoundment. We find that under the circumstances here presented, this search cannot be sustained as an inventory search but was an unreasonable investigatory search and an invasion of defendant's justifiable expectation of privacy.

On the night of November 10, 1976, defendant was riding in his car with a friend when he was stopped by police on suspicion of drunk driving. Defendant was placed under arrest for driving while intoxicated and informed that, pursuant to the policy of the Jackson Police Department, his car would be towed in and an inventory search of its contents conducted. ¹ Defendant requested that his female companion be allowed to drive the car away. The arresting officer refused this request on the grounds that the woman was neither the owner of the car nor the defendant's wife. Although the woman had a cast on one of her legs, the arresting officer testified that the cast was not a factor that he considered in refusing defendant's request to let her take custody of the car. Defense counsel questioned the officer about this matter:

"Q. So, now, the girl at that time, as far as you could tell, was capable of driving a car?

"A. Considering she had a cast on her leg, I guess she could.

"Q. A cast.

"A. I don't know whether she could or not

"Q. Well, but there was no question raised that she could not drive the car except the fact that ya'll were taking the car in?

"A. Well, she could not drive it because she did not have the authority as our department determines by our policy.

"Q. The only reason that kept her from driving the car as far as you are considering at this time was that you could not turn the car over to her?

"A. Correct.

"Q. And she was willing to drive the car.

"A. Right."

The officer had testified previously on direct examination that the woman was not intoxicated and that "(s)he was able to function with coordination pretty good."

Prior to the arrival of the wrecker, police conducted a complete search of defendant's car while defendant was seated in the back of the police car, ² and discovered a closed box on the front seat and a rolled-up grocery sack in the trunk, both containing what appeared to be marijuana.

At trial, defendant objected to admission of the marijuana as the product of an illegal search on grounds that the officer had no probable cause to believe there was contraband in the automobile, and the officer did not have lawful custody of the vehicle. The trial judge overruled the motion.

In affirming defendant's conviction, the Court of Criminal Appeals found the case controlled by South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). The appellate court also cited T.C.A., § 59-1018, requiring that any person arrested for driving while intoxicated be taken immediately before a magistrate. It further found that the officers had acted reasonably in following standard police regulations.

Courts throughout the nation have given substantial consideration in the past few years to the circumstances under which police may or may not impound automobiles and then conduct an inventory of the contents, consistent with constitutional protections against unreasonable searches and seizures. See, e. g., Annot., 48 ALR 3d 537 (1973). This Court has not had occasion to consider the issue in a context comparable to the instant case. In Capps v. State, Tenn., 505 S.W.2d 727 (1974), an impoundment and inventory search were upheld on grounds that the car was seized under authority of the Contraband Seizure Act, 49 U.S.C.A. § 781 Et seq. That act requires that automobiles used to transport contraband be seized and forfeited. In Capps, supra, the contraband was an illegally sawed-off shotgun plainly visible to the arresting officer from outside the car. The subsequent inventory search was directed by a federal agent called by local police. The problem in the instant case does not extend to a consideration of the limited inventory search that law enforcement officials may conduct once an automobile is in their custody under force of law, as in Capps v. State, supra. The problem for resolution here concerns whether the automobile ever lawfully came into the custody of the police, thus permitting a subsequent inventory search. The facts here presented compel the conclusion that there was no lawful impoundment in the first instance.

The decision of the United States Supreme Court in South Dakota v. Opperman, supra, has limited application to the case at bar. The issue in Opperman concerned the constitutionality of a "routine inventory search of an automobile lawfully impounded." Id., 428 U.S. at 365, 96 S.Ct. at 3095. The vehicle in Opperman had been parked on the street in a part of town where on-street parking was prohibited. The car was ticketed twice, once at 3:00 a. m. and again at 10:00 a. m., and was finally towed to the city impoundment lot shortly thereafter. Police conducted a routine inventory search of the car at the lot and discovered a bag of marijuana in the glove compartment. The Court broadly upheld police impoundments of vehicles "(i)n the interests of public safety" and "community caretaking functions" such as towing away cars after automobile accidents and ordinance violations which jeopardize "the public safety and the efficient movement of vehicular traffic." 428 U.S. at 368-69, 96 S.Ct. at 3097. The Court justified the routine inventory search that commonly follows impoundment as having three purposes: protection of the owner's property while in police custody; protection of police against claims of lost property; and protection of police from potential danger. Id. at 369, 96 S.Ct. at 3097.

Although the Opperman plurality stated that "caretaking procedures have almost uniformly been upheld by the state courts," 428 U.S. at 369, 96 S.Ct. at 3097, an increasing number of jurisdictions are scrutinizing the facts of each case to determine if the asserted need of the police to impound and search a car outweighs the constitutionally protected interest of the citizen in the privacy of his or her automobile and the personal possessions contained therein. See, e. g., State v. Boster, 217 Kan. 618, 539 P.2d 294 (1975); State v. Hatfield, 364 So.2d 578 (La.1978); State v. Goodrich, 256 N.W.2d 506 (Minn.1977); State v. Slockbower, 79 N.J. 1, 397 A.2d 1050 (1979); State v. Ercolano, 79 N.J. 25, 397 A.2d 1062 (1979). See also, People v. Nagel, 17 Cal.App.3d 492, 95 Cal.Rptr. 129 (1971); City of Danville v. Dawson, 528 S.W.2d 687 (Ky.1975); Dixon v. State, 23 Md.App. 19, 327 A.2d 516 (1974); State v. Singleton, 9 Wash.App. 327, 511 P.2d 1396 (1973).

The guideline that has been persuasively applied in numerous cases, and with which we are in agreement, is that if the circumstances that bring the automobile to the attention of the police in the first place are such that the driver, even though arrested, is able to make his or her own arrangements for the custody of the vehicle, or if the vehicle can be parked and locked without obstructing traffic or endangering the public, the police should permit the action to be taken rather than impound the car against the will of the driver and then search it. Just cause to arrest the driver is not, alone, enough; there must also be reasonable cause to take his vehicle into custody.

The rule was succinctly expressed in State v. Bales, 15 Wash.App. 834, 552 P.2d 688 (1976), in which defendant was stopped for speeding and arrested on an outstanding warrant. His car was impounded despite his plea to have a friend pick up the vehicle within a few minutes and after giving police the friend's telephone number. The court stated:

"When a friend or relative is available to move a vehicle for a defendant just arrested on a traffic charge, the arresting officer is not justified in calling for an impoundment absent other circumstances. . . . Impoundment of a citizen's vehicle following his or her arrest on a traffic charge is inappropriate when reasonable alternatives to impoundment exist. To permit a subsequent warrantless inventory search to be accomplished thereby would be improper."

In Virgil v. Superior Court, 268 Cal.App.2d 127, 73 Cal.Rptr. 793 (1968), a case quite similar to the present case on the facts, the defendant was stopped and arrested for reckless driving. He had two friends in the car with him. Police impounded the car and upon making an inventory search discovered marijuana under the front seat. The court refused to sanction the search:

"The burden was upon the prosecution to justify the search. (Citations omitted.) It was therefore its burden to explain that an impounding of the car was necessary. Virgil was not alone. No reason appears why his friends could not have taken charge of the vehicle. The...