One 1965 Econoline, I. D. No. 16JH702043, Ariz. License No. EC-7887, In re, EC-7887

• Decision Date: 06 April 1972
• Docket Number: EC-7887,No. 1,CA-CIV,1
• Citation: 495 P.2d 504,17 Ariz.App. 64
• Parties: In the Matter of ONE 1965 ECONOLINE, I.D. #E16JH702043, ARIZONA LICENSE NO.Jon Lloyd BOULET, Appellant, v. STATE of Arizona, Appellee. 1586.
• Court: Arizona Court of Appeals

Page 504

495 P.2d 504

17 Ariz.App. 64

In the Matter of ONE 1965 ECONOLINE, I.D. #E16JH702043, ARIZONA LICENSE NO. EC-7887.

Jon Lloyd BOULET, Appellant, v. STATE of Arizona, Appellee.

No. 1 CA-CIV 1586.

Court of Appeals of Arizona, Division 1.

April 6, 1972.

Rehearing Denied May 11, 1972.

Review Granted June 27, 1972.

Finn & Van Baalen by Peter T. Van Baalen, Phoenix, for appellant.

Thelton D. Beck, Yavapai County Atty., by G. Eugene Neil, Deputy County Atty., Prescott, for appellee.

HOWARD, Judge.

This is an appeal from a judgment entered August 28, 1970, forfeiting to the State of Arizona a 1965 Ford Econoline, owned and possessed by Jon Lloyd Boulet, pursuant to A.R.S. § 36-1041 et seq. It is appellant's position that the judgment must be reversed because the trial court erred in admitting into evidence certain exhibits to prove the vehicle contained contraband.

Viewing the evidence in a light most favorable to the State, the following sequence of events led to the cause now before this court. On May 27, 1970, at 1:00 p.m., Arizona Highway Patrolman Fred Reid encountered a Ford van on the right-hand shoulder of State Highway 79 in Yavapai County. The vehicle appeared to be immobile and to have been either in an accident or abandoned. Officer Reid approached the vehicle and observed Boulet inside sitting on a makeshift bed. A .22 caliber rifle was standing next to Boulet. Officer Reid attempted to get Boulet to leave the vehicle but he replied that he was 'scared to come out.' Officer Reid stated that Boulet was unresponsive to questioning and incoherent and that there was something obviously wrong with him, but there was no smell of alcohol and he had no reason to suspect Boulet of being under the influence of alcohol. Boulet ultimately left the van stating that there had been an accident. Officer Reid informed Boulet that his van would have to be towed away and Boulet consented. Officer Reid also informed Boulet that he was going to inventory Boulet's vehicle and he neither asked for nor received Boulet's consent to make the inventory.

After calling a tow truck Officer Reid opened the rear door of the van. As he did a small suitcase fell out and he commenced his inventory with that item. The second item that he picked up was a shaving satchel, which he opened and in which he saw five bags of white substance, some pills, a needle, a syringe and a spoon. At this point Officer Reid stopped the inventory, placed Boulet under arrest and called for a narcotics agent. The van was towed to the Justice of the Peace Court in Camp Verde, Arizona, where Officer Reid and the narcotics agent, Ron Joseph, obtained a search warrant. The officers then searched the van and found marijuana in a useable quantity.

Officer Reid admitted that at the time he was conducting the inventory of the vehicle he did not have probable cause to believe a crime was being committed with the vehicle or by Boulet and did not have a search warrant, but was merely following the Arizona Highway Patrol policy on inventories.

On appeal, Boulet sets forth three arguments, the first multi-faceted: (1) Whether evidence in a vehicle forfeiture proceeding is admissible when obtained by a police officer who makes a search of a vehicle and seizes evidence when the owner or the person in possession of the vehicle does not voluntarily consent to such a search, where the search is not incident to an arrest, where the officer does not have probable cause to conduct a search, where the officer has not first obtained a search warrant, where the vehicle is not moveable and where there is no showing of immediate necessity of a search; (2) whether evidence may be admitted over timely objections in a vehicle forfeiture proceeding when the evidence was obtained through a search warrant when the probable cause to obtain the search warrant was developed by the officer through a prior illegal search and seizure, and (3) whether there was a valid inventory of the 1956 Ford Econoline vehicle or whether there was a search termed an 'inventory.' The State answers by asserting there is only, in actuality, one issue presented on appeal, as follows:

'Does the Fourth Amendment prohibit the inventorying of a disabled motor vehicle at the accident scene before it is released by the investigating officer to the wrecker operator to be towed away from the scene?'

We believe the question essentially resolves itself into whether the 'inventory' procedure used here was a 'search' in the constitutional sense and if so, whether it was reasonable under the circumstances. The disposition of these points will necessarily dispose of the questions as posed by both parties to this appeal.

The State argues that Officer Reid's actions did not amount to a search. The trial judge, while not specifically so holding, apparently adopted this position in his finding as follows:

'The Court is further of the feeling that the normal search and seizure and probable cause incidental to an arrest case are not applicable to this particular fact situation. Frankly, the Court has some concern as to whether or not this particular type of activity could be subject to abuse under the guise of being an inventory rather than a search and seizure. It is the opinion of the Court that in view of the rather limited experience of the police officer involved, the Court finds that the inventory was made in good faith and not made as a subterfuge for a search. The Court finds that the circumstances surrounding the inventory were reasonable at that time.'

IS AN 'INVENTORY' A 'SEARCH'?

Is a detailed 'inventory' a 'search' within the scope of the Fourth Amendment to the United States Constitution? This question was answered in the affirmative by the California Supreme Court in the case of Mozzetti v. Superior Court of Sacramento County, 4 Cal.3d 699, 94 Cal.Rptr. 412, 484 P.2d 84 (1971). Although there are cases to the contrary, we find the opinion in Mozzetti to be compelling and well reasoned. It that case the petitioner was involved in a two-car collision. She sustained injuries in the accident and was promptly removed to the hospital by an ambulance. When the police arrived at the scene, they determined that petitioner's vehicle was blocking the roadway and arrangements were made to have the vehicle towed to police storage pursuant to California statutory authority.

In accordance with standard procedure, an officer of the Sacramento Police Department was instructed to prepare an inventory of the contents of petitioner's automobile prior to having it towed to police storage facilities. In the course of the inventory the officer saw a small suitcase in the back seat of the car. Finding the suitcase unlocked, he opened it, apparently to determine if it contained any articles of value. Inside he found a plastic bag containing a quantity of marijuana. Because petitioner's automobile was a convertible, at the conclusion of the inventory, several items found in the car's interior, including the suitcase, were locked in the trunk. The car was then towed to a police storage garage and the keys were later turned over to the petitioner. The marijuana was seized and formed the basis of a criminal prosecution. Petitioner's motion to suppress was denied by the trial court. The court in Mozzetti held that the trial court erred in not suppressing the evidence found inside the suitcase. In doing so, the California Supreme Court disavowed the reasoning of a long series of California Courts of Appeal cases reasoning that those cases provided no persuasive rationale to justify the practices which their holdings validated.

The People in Mozzetti sought to validate the inventory practice by distinguishing between an inventory and a search. It was argued that a search implies seeking for contraband or evidence of guilt which has been concealed in order that it may be used in the prosecution of a criminal action, whereas the purpose of an inventory is entirely different. In rejecting such a distinction, the court in Mozzetti observed that such a concept was expressly rejected by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Court in Terry, responding to the government's contention that police stop-and-frisk activity was not within the scope of the Fourth Amendment, stated: 'In our view the sounder course is to recognize that the Fourth Amendment governs all intrusions by agents of the public upon personal security, and to make the scope of the particular intrusion, in light of all the exigencies of the case, a central element in the analysis of reasonableness. (Citations) This seems preferable to an approach which attributes too much significance to an overly technical definition of 'search'. . . .' 392 U.S. 18 n. 15, at 19, 88 S.Ct. at 1878. The Court went on to state:

'The distinctions of classical 'stop-and-frisk' theory thus serve to divert attention from the central inquiry under the Fourth Amendment--the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security. 'Search' and 'seizure' are not talismans. We therefore reject the notions that the Fourth Amendment does not come into play at all as a limitation upon police conduct if the officer stops short of something called a 'technical arrest' or a 'full-blown search." 392 U.S. at 19, 88 S.Ct. at 1878.

The distinction urged by the People in Mozzetti was also unequivocally rejected by the United States Supreme Court in Camera v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), wherein the Court refused to confine the scope of the Fourth Amendment to the typical policeman's search for the fruits and instrumentality of crime, saying: 'It is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior.' 387 U.S. at 530, 87 S.Ct....