People v. Krezen

• Decision Date: 15 August 1985
• Docket Number: Docket No. 71895
• Citation: 371 N.W.2d 882,143 Mich.App. 34
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Sandra Lee KREZEN, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 882

371 N.W.2d 882

143 Mich.App. 34

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Sandra Lee KREZEN, Defendant-Appellant.

Docket No. 71895.

Court of Appeals of Michigan.

Submitted Oct. 2, 1984.

Decided May 20, 1985.

Released for Publication Aug. 15, 1985.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., David H. Sawyer, Pros. Atty., and Timothy K. McMorrow, Chief Appellate Asst. Pros. Atty., for the people.

George S. Booth, Grand Rapids, for defendant-appellant.

Before HOLBROOK, P.J., and MacKENZIE and LAMB ^*, JJ.

MacKENZIE, Judge.

The issue in this case is whether an inventory search of an automobile violated the Fourth Amendment prohibition against unreasonable searches and seizures when the search was not incident to the defendant's arrest, the automobile was lawfully and safely parked, and the officers did not seek alternative arrangements for the car's disposition or obtain the defendant's consent to the impoundment. We find the threshold decision to impound under these facts was an abuse of discretion.

On September 11, 1982, defendant drove her car to the Kent County Airport, parked and locked it in the air freight parking lot, and proceeded inside to the United Airlines Service desk to claim a package that had arrived for her that morning from California. Immediately after signing for the package, defendant was arrested by an officer of the Grand Rapids police department who had been advised by California authorities that the package contained cocaine. Pursuant to standard departmental policy, another officer, who had remained in the parking lot during defendant's arrest, impounded defendant's car and conducted an inventory search of its contents. Defendant's purse, which had been left closed on the front seat, was found to contain three hypodermic syringes, a brown vial with cocaine residue, and instruments associated with the use of cocaine.

As a result of the search of her car and purse, defendant was charged with possession of cocaine in violation of M.C.L. Sec. 333.7403; M.S.A. Sec. 14.15(7403). Defendant was further charged with possession of cocaine with intent to deliver, M.C.L. Sec. 333.7401(1), 333.7401(2)(a)(iv); M.S.A. Sec. 14.15(7401)(1), 14.15(7401)(2)(a)(iv), for her receipt of the air freight package.

Prior to trial defendant moved to suppress the evidence found in her car, arguing that it was obtained as the result of an illegal search. The trial court found that the search was a properly conducted inventory search, citing South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), and denied the motion. Defendant was convicted by a jury as charged and appeals as of right.

The Fourth Amendment to the Constitution of the United States, made applicable to the states by way of the Fourteenth Amendment, see Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures". U.S. Const.Am. IV. A search without a warrant, i.e., one conducted "outside the judicial process, without prior approval by judge or magistrate", Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967), is per se unreasonable under both the federal and state constitutions. U.S. Const.Am. IV; Const.1963, art. 1, Sec. 11. United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 2173, 72 L.Ed.2d 572 (1982), quoting Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). People v. Heard, 65 Mich.App. 494, 498 237 N.W.2d 525 (1975). This cardinal principle is subject only to "a few specifically established and well-delineated exceptions". United States v. Ross, supra. People v. Castle, 126 Mich.App. 203, 207, 337 N.W.2d 48 (1983).

One such exception has been recognized in situations where the police, pursuant to their "community caretaking functions", Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), impound a privately owned motor vehicle. South Dakota v. Opperman, supra, 428 U.S. p. 368, 96 S.Ct. p. 3096; see People v. Boutell, 80 Mich.App. 216, 263 N.W.2d 36 (1977), lv. den. 402 Mich. 877 (1978). Once in their custody, the police are authorized to conduct without a warrant an "inventory" search of the vehicle for the purpose of securing or protecting the contents therein against theft or vandalism, provided however that the search is not merely a pretext concealing investigatory motives. South Dakota v. Opperman, supra, 428 U.S. p. 376, 96 S.Ct. p. 3100; People v. Castle, supra, 126 Mich.App. p. 208, 337 N.W.2d 48. This procedure has been justified on three distinct grounds: (1) the protection of property while held in police custody; (2) protection of the police against claims over lost or stolen property; and (3) protection of the police from potential danger. People v. Merchant, 86 Mich.App. 355, 361, 272 N.W.2d 656 (1978). South Dakota v. Opperman, supra, 428 U.S. p. 369, 96 S.Ct. p. 3097. Cf. 48 ALR3d 537, Sec. 2[a], p 547, fn 1. Our own Supreme Court has recently held that:

"Whenever a motor vehicle has been lawfully impounded, the Fourth Amendment permits the police, absent a warrant, to conduct an inventory search pursuant to standard procedures, so long as the police department has established standard procedures for conducting inventory searches". People v. Long (On Remand), 419 Mich. 636, 649-650, 359 N.W.2d 194 (1984).

The validity of an inventory search rests in large part upon the initial decision by the police to impound a vehicle. It is well established in Michigan and in other jurisdictions that the search of a vehicle cannot be justified as one undertaken to secure its contents unless it was first lawfully impounded. People v. Long, supra. People v. Rocha, 110 Mich.App. 1, 12, 312 N.W.2d 657 (1981); People v. Castle, supra, 126 Mich.App. pp. 206-207, 337 N.W.2d 48; People v. Siegel, 95 Mich.App. 594, 605, 291 N.W.2d 134 (1980); People v. Roberson, 80 Mich.App. 241, 243, 263 N.W.2d 42 (1977); 68 AmJur2d, Searches & Seizures, Sec. 57, p 708; Anno: "Lawfulness of 'Inventory Search' of Motor Vehicle Impounded by Police", 48 A.L.R.3d 537, Secs. 5-6, pp 551-558.

The initial decision of whether to impound a vehicle has been held to be within the discretion of the individual police officer. People v. Castle, supra, 126 Mich.App. pp. 206-207, 337 N.W.2d 48. We find that despite the standard policy of the Grand Rapids police department to impound and inventory all motor vehicles following the arrests of their drivers, the officer's decision here to impound defendant's vehicle was an abuse of discretion.

This finding is premised on our belief that the mere possibility of theft or vandalism to the contents of a vehicle left unattended, which, if realized, may in turn lead to claims against the police for loss or damages, does not compare in importance with the preservation of basic constitutional guarantees. Standard police procedures such as those followed in Grand Rapids are simply too broad when viewed against the backdrop of the Fourth Amendment. Instead of allowing an officer to exercise his individual discretion, such blanket policies encourage police to impound and inventory each and every vehicle whose driver is taken into custody, regardless of whether such action is necessary or reasonable under the circumstances. Procedures to safeguard both motor vehicle and the police in such situations can and must be better tailored to fit the dictates of our state and federal constitutions.

We therefore hold that an officer who takes the driver of a motor vehicle into police custody or who otherwise finds a motor vehicle left unattended cannot thereafter impound the vehicle for safekeeping without first determining that such action is both necessary and reasonable under the circumstances. The burden is on the state to show that any impoundment is both necessary and reasonable. People v. Siegel, supra, 95 Mich.App. p 601, 291 N.W.2d 134; People v. Castle, supra, 126 Mich.App. p 207, 337 N.W.2d 48. If it is determined that an abuse of discretion has occurred, a subsequent inventory search must be held to be invalid. People v. Castle, supra, 126 Mich.App. p. 209, 337 N.W.2d 48; People v. Siegel, supra, 95 Mich.App. p. 605, 291 N.W.2d 134.

We further hold that, where the owner or permissive user of a motor vehicle is present and not incapacitated, it is imminently reasonable for the arresting officer to first obtain the owner's consent to impound and search the vehicle or otherwise allow the owner a reasonable opportunity to make alternate arrangements to secure the vehicle. See People v. Morgan Clark, 68 Mich.App. 674, 686-687, 243 N.W.2d 914 (1976) (dissent of Noble, J.). For instance, an owner might make a reasonable decision to leave his vehicle lawfully parked at or near the point of his arrest, albeit unattended, if his detention is expected to be merely temporary. Or an owner might decide to give physical custody of his vehicle to a friend, relative, or passenger. By making such arrangements in lieu of impoundment, an owner may also avoid the incidental costs (towing and storage) that would otherwise be assessed against him.

Finally, we hold that impoundment is not necessary where a car is lawfully parked, does not impede the regular flow of traffic, and does not otherwise pose any threat to public safety. If an owner or permissive user neither requests that his car be impounded nor gives his consent, he will be presumed to have assumed the risk for any claims of loss or damage that may arise.

We note that similar procedures are required in other jurisdictions. See, e.g., State v. Mangold, 82 N.J. 575, 414 A.2d 1312 (1980); State v. Thomason, 153 Ga.App. 345, 265 S.E.2d 312 (1980); People v. Schultz, 93 Ill.App.3d 1071, 49 Ill.Dec. 362, 418 N.E.2d 6 (1981); State v. Gaut, 357 So.2d 513 (La. 1978); Virgil v. Superior Court of...