Ex parte Boyd

• Decision Date: 24 February 1989
• Citation: 542 So.2d 1276
• Parties: Ex parte William Glen BOYD. (Re William Glen Boyd v. State of Alabama). 87-711.
• Court: Alabama Supreme Court

Page 1276

542 So.2d 1276

Ex parte William Glen BOYD.

(Re William Glen Boyd v. State of Alabama).

87-711.

Supreme Court of Alabama.

Feb. 24, 1989.

Rehearing Denied April 7, 1989.

Stephen Brian Levinson and Michael L. Allsup, Anniston, for petitioner.

Don Siegelman, Atty. Gen., and Rivard Melson, Asst. Atty. Gen., for respondent.

HORNSBY, Chief Justice. ^*

This is a death penalty case. On March 26, 1986, Fred and Evelyn Blackmon were robbed, kidnapped, and murdered. Petitioner William Glen Boyd was convicted of committing these crimes and was sentenced to death by electrocution. The Court of Criminal Appeals affirmed. Boyd v. State, 542 So.2d 1247 (Ala.Crim.App.1988). A complete recitation of the facts of this case is set forth in that court's opinion; we set forth below only such facts as we deem necessary to resolve the issues before us.

On the morning of the crime, Boyd and Robert Milstead ¹ parked Boyd's Chevrolet Camaro automobile about a quarter mile from the victims' home. The robbery and kidnapping began at the Blackmons' home and continued in the Blackmons' Cadillac Eldorado automobile; the murder site was a secluded area on the Coosa River near Ohatchee.

Sergeant Hall of the Anniston Police Department testified that on April 3, 1986, as Boyd exited from his Camaro, which was parked on the street in front of his house, he was arrested and charged with kidnapping the Blackmons. Another officer took Boyd into custody, and Sergeant Hall impounded the Camaro and drove it to the city impound lot behind the police station. ² Later that afternoon, Boyd gave a statement, amounting to a confession, to Lieutenant Carroll. During the course of that statement, at which only Lieutenant Carroll was present, Boyd said that the clothes worn by him and Milstead on the date of the crimes were on the seat of the Camaro.

Officer Bradley and Sergeant Watson testified that they inventoried the Camaro on April 7, 1986, four days after the arrest and impoundment. Bradley testified that "[i]t was an inventory by request of Lieutenant Carroll." Bradley further testified that the detective bureau had asked that the Camaro be inventoried and that evidence found pursuant to the inventory be gathered. Sergeant Watson confirmed that the purpose for entering the Camaro was "[t]o conduct an inventory search of the vehicle." Lieutenant Carroll furnished the key to the Camaro to Sergeant Watson. Carroll had received the key from the arresting officer, who had kept it with him for "three or four days" after the arrest.

Sergeant Watson agreed that the inventory was conducted in "compliance with the policies of the police department." Boyd objected to any further testimony concerning the inventory or its fruits unless proof was made as to what the policies or procedures were; his objection was overruled. During Sergeant Watson's cross-examination, the following exchange occurred:

"Q. Let's go back to what you've referred to as an inventory search of a vehicle.

"Would you please tell this Court and this jury what the policy is with the City of Anniston concerning inventory searches?

"A. Whenever a vehicle is impounded, this vehicle has to be inventoried thoroughly in order to determine and document anything that may be contained therein.

"Q. Do you normally do those inventory searches?

"A. I haven't in a long time. I did for many years. I make very few arrests nor do I inventory many cars now.

"Q. When was the last time you inventoried a vehicle other than Glen's car?

"A. I can't tell you, sir. I don't know.

"Q. A year or two?

"A. Possibly."

Sergeant Watson testified that he did not know where in the city's policy regarding inventory procedures the criteria for conducting inventories were located. He did not know where the list compiled as the result of the inventory was located, and no such list was introduced at trial.

Officer Bradley was also pressed on cross-examination about the city's policies and procedures regarding inventorying impounded automobiles:

"Q. It's the standard policy of the police department of the City of Anniston to go out and get evidence whenever a car is impounded?

"A. No. You're always aware that evidence may be found when you're making an inventory.

"Q. And, of course, you always take a camera with you when you do an inventory?

"A. On some occasions, yes, sir, you do.

"Q. Always?

"A. Not always.

"Q. What percentage of the time?

"A. I beg your pardon?

"Q. What percentage of the time is a camera used in making an inventory search of a vehicle at the police department of Anniston?

"A. Usually, when we're aware that there is a major case involved, we will take a camera as routine procedure to document what condition it's in or anything we discover and to aid us in later documenting what was inside the vehicle.

"Q. Did you do any kind of recording while you were doing this inventory search?

"A. No, sir. That wasn't my job.

"Q. Did anybody?

"A. Yes, sir.

"Q. In whose possession is that recording?

"A. I don't know where the report is."

No other testimony was adduced by either the State or Boyd relating what the inventory procedures of the City of Anniston Police Department were. No directive, general order, or evidence of a municipal code was introduced that would show what the policies were.

Some of the items obtained as the result of the inventory were introduced against Boyd at trial. This evidence included a fabric very similar to or the same as that used to bind the victims; blood-stained clothes worn by Boyd and Milstead on the day of the crimes; and a necklace that had belonged to Evelyn Blackmon.

We take notice that the State prosecuted its case with extensive testimony, nearly unfaltering, almost exclusively directed at the proposition that the warrantless search of Boyd's Camaro was valid as an inventory. Boyd's objections at trial and rulings in response thereto were directed at the validity of the city's inventory policies. The briefs to the Court of Criminal Appeals and to this Court primarily address the propriety of the search as an inventory. Only in passing did the Court of Criminal Appeals suggest that the search could have been valid as a "vehicle search" based on probable cause. In fairness to the parties, this Court ordered briefing on the probable cause issue to supplement the briefs filed on appeal.

In light of the foregoing facts and circumstances, we now turn to the analysis and resolution of this case.

I.

In South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), the Supreme Court of the United States was faced squarely with the issue of whether the police practice of inventorying a vehicle lawfully impounded constituted an "unreasonable search" within the meaning of the Fourth Amendment. Chief Justice Burger, writing for the Court, stated that "[t]hese procedures developed in response to three distinct needs: the protection of the owner's property while it remains in police custody; the protection of the police against claims or disputes over lost or stolen property; and the protection of the police from potential danger." 428 U.S. at 369, 96 S.Ct. at 3097 (citations omitted). The Court, after finding no suggestion in the record before it that the inventory there involved was a pretext concealing an investigatory motive, concluded that "in following standard police procedures, ... the conduct of the police was not 'unreasonable' under the Fourth Amendment." Id. at 376, 96 S.Ct. at 3100.

In Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987), the Supreme Court reiterated the three-part rationale advanced in support of the inventory procedure as stated in Opperman, and concluded that "reasonable police regulations relating to inventory procedures administered in good faith satisfy the Fourth Amendment." 479 U.S. at 374, 107 S.Ct. at 742. Moreover, that Court held that the existence of police discretion in the manner of conducting the inventory did not render the inventory constitutionally infirm "so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity." Id. at 375, 107 S.Ct. at 743. Justice Blackmun, joined by Justices Powell and O'Connor, concurred in order to "underscore the importance of having such inventories conducted only pursuant to standardized police procedures." Id. at 376, 107 S.Ct. at 744 (Blackmun, J., concurring). Even in dissent, Justice Marshall, joined by Justice Brennan, recognized that "[s]tandardized procedures are necessary to ensure that this narrow exception [to the mandate of the Fourth Amendment] is not improperly used to justify, after the fact, a warrantless investigatory foray." ³ Id. at 381, 107 S.Ct. at 746 (Marshall, J., dissenting).

In Wilkinson v. State, 374 So.2d 400 (Ala.1979), this Court, denying a petition for a writ of certiorari, recognized that Opperman had created a seventh exception to the warrant requirement of the Fourth Amendment. ⁴ Since that time, Colorado v. Bertine, supra, has been decided and, along with Opperman, that case has been construed many times by the Court of Criminal Appeals. We believe that the issues of the case now before us, in light of the holdings of Opperman and Bertine and the concerns of those who wrote separately in those cases, invite discussion of two considerations. First, when must an inventory be conducted, with reference to the time of the impoundment, in order to satisfy the purposes for which this exception developed? Second, what constitutes evidence that the police complied with reasonable or standardized police regulations or procedures relating to automobile inventory practices? We address each consideration separately.

A.

We are unaware of any case, federal or state, that presents the issue of whether a search can be valid as an inventory notwithstanding a four-day lapse of time between the impoundment and the inventory. We are of...