Henderson v. State, CACR85-116

• Decision Date: 27 November 1985
• Docket Number: No. CACR85-116,CACR85-116
• Parties: Larry D. HENDERSON, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Court of Appeals

Page 419

699 S.W.2d 419

16 Ark.App. 225

Larry D. HENDERSON, Appellant, v. STATE of Arkansas, Appellee.

No. CACR85-116.

Court of Appeals of Arkansas,

En Banc.

Nov. 27, 1985.

Dale Varner, Springdale, for appellant.

Steve Clark, Atty. Gen. by Connie Griffin, Asst. Atty. Gen., Little Rock, for appellee.

GLAZE, Judge.

Appellant appeals his conviction for possession of a firearm by a convicted felon, for which he was sentenced to a three-year term in the Arkansas Department of Correction. He contends that the trial court erred in denying his motion to suppress the evidence, claiming that the warrantless search of his briefcase was both unreasonable and beyond the scope of the inventory procedure.

On the afternoon of July 4, 1984, a park ranger saw appellant in his vehicle parked on the side of a road in the park's campground sewage disposal area. Appellant appeared to be passed out, and his vehicle's engine was running. The ranger called the sheriff's office, and a deputy sheriff arrived to investigate. The officer awoke appellant and ran a check on his vehicle and driver's licenses. He then gave appellant a field sobriety test, which he failed. Appellant then was arrested for being in actual control of a vehicle while intoxicated.

The deputy sheriff locked the car and asked the park ranger to stay with it while the deputy transported appellant to the sheriff's office. Pursuant to sheriff department policy, the officer returned to inventory the car before impounding it. He testified that he had to remove the car because it was in an area where campers disposed of the contents of their septic tanks.

The officer found an unlocked, unlatched, closed briefcase in the middle of the back seat. He flipped open the briefcase and found a Model 13 Smith and Wesson .357 pistol, two fully loaded speed loaders, and a bag of marijuana. ¹ In its order overruling appellant's motion to suppress, the trial court, citing Colyer v. State, 9 Ark.App. 1, 652 S.W.2d 645 (1983), found that the search of the unlocked briefcase, in plain view of anyone entering the car, was no more than an inventorying of the vehicle, in keeping with the sheriff office's policy.

Citing Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981) and Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), appellant contends on appeal that the warrantless search of his briefcase was unreasonable because of the expectation of privacy one has in containers such as briefcases. ² However, in both Robbins and Sanders, investigatory, not inventory, searches were conducted, and the government was attempting to justify the searches of the containers under the vehicle exception to the warrant requirement. As the court stated in United States v. Rabenberg, 766 F.2d 355 (8th Cir.1985), inventory searches do not rest upon findings of probable cause and, in light of their noninvestigatory nature, do not implicate the warrant requirement.

In South Dakota v. Opperman,428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), the Court noted inventory procedures developed in response to three distinct needs on the part of police departments: 1) the protection of the owner's property while it remains in police custody, 2) the protection of the police against claims or disputes over lost or stolen property, and 3) the protection of the police from potential danger. When conducted pursuant to standard procedure, and where aimed at securing or protecting the owner's property, the Court has consistently sustained inventory searches as exceptions to the search warrant requirement. Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983); Opperman, supra.

The Lafayette case involved an inventory search of a purse-type shoulder bag carried by the defendant when he was arrested for disturbing the peace. While the facts in Lafayette did not involve an automobile, the Court thoroughly discussed the principles associated with inventory searches as set forth in Opperman, and further considered whether the Fourth Amendment requires that such a search must be achieved in what the Court termed "a less intrusive manner." We note that Lafayette's search was not done immediately at the time and place of his arrest, but instead was performed later at the police station. According to standard inventory procedure, an officer examined the contents of the defendant's bag and found ten amphetamine pills. The officer conceded the bag could have been placed and sealed in a container or locker for protection purposes. The state court held the inventory invalid, distinguishing Opperman on the basis that there is a greater privacy interest in a purse-type shoulder bag than in an automobile, and that the state's legitimate interests could have been met in a less intrusive manner, by sealing the bag within a plastic bag or box and placing it in a locker. The Supreme Court disagreed, and upheld the inventory as reasonable, stating the reasonableness of any particular governmental activity does not necessarily or invariably turn on the existence of alternative "less intrusive" means. The Court further concluded:

Even if less intrusive means existed of protecting some particular types of property, it would be unreasonable to expect police officers in the everyday course of business to make fine and subtle distinctions in deciding which containers or items may be searched and which must be sealed as a unit.

Lafayette, 462 U.S. at 648, 103 S.Ct. at 2611.

The Eighth Circuit Court of Appeals has had a series of inventory cases, the most recent of which was Rabenberg, supra. There, the appellants contended the officer's opening of a suitcase, and two gift-wrapped packages contained therein, exceeded the legitimate scope of an inventory search, and that the police department's policy requiring inventory searches merely was used by police as a pretext for an improper investigatory search. ³ The court upheld the inventory, finding that it was necessary for the officer to open the package so that he might protect all persons concerned from claims of theft and from dangerous instrumentalities. The court said:

[E]ven though an inventorying policy might not always justify opening of a sealed package, see, United States v. Bloomfield, 594 F.2d 1200 (8th Cir.1979), we cannot say that this search was unreasonable, given the peculiar circumstances.

Rabenberg, 766 F.2d at 357.

The Bloomfield case, cited in Rabenberg, involved an inventory search which the Eighth Circuit held invalid. Bloomfield was found unconscious in his car which was blocking traffic. He was taken to the hospital, and his automobile was inventoried by the police and later towed from the public highway. In inventorying, the officers opened a knapsack which was zipper-closed and tied with string. Inside, they found 10,360 dosage units of lysergic acid diethylamide (LSD), 23 grams of phencyclidine (PCP) and $1,300.00 cash. The court, limiting its holding to the facts before it, concluded the knapsack should have been inventoried as a unit because it was sealed tightly and there was no danger of anything slipping out. In so holding, the court recognized that there was no reason to believe the knapsack posed any danger to the police, and that inventorying the knapsack as a unit both protected Bloomfield's property, and, at the same time, protected the police against claims or disputes over lost or stolen property. The court added, in important part, that if a container which is to be inventoried is not closed securely so that the articles within could possibly fall out, it may be wiser to itemize the articles. See United...