Robertson v. State

• Decision Date: 06 October 1976
• Docket Number: No. 51878,51878
• Citation: 541 S.W.2d 608
• Parties: Larry ROBERTSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 608

541 S.W.2d 608

Larry ROBERTSON, Appellant, v. The STATE of Texas, Appellee.

No. 51878.

Court of Criminal Appeals of Texas.

Oct. 6, 1976.

Louis M. Moore, Houston, for appellant.

Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III, Byron Davis, Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

DOUGLAS, Judge.

Larry Robertson was found guilty by the trial court upon stipulated facts for the possession of less than two ounces of marihuana. Punishment was assessed at a fine of $350.00. His sole contention on appeal is that the evidence was illegally obtained as the result of an inventory of his automobile. We overrule that contention and affirm.

When a driver has a collision rendering the car inoperable and he is taken to a hospital because of injuries, is it reasonable for an officer to make an inventory of the property in the car to protect the owner and the officer and the wrecker service?

At approximately 9:00 p.m., Robertson, who was alone in his car, drove into a utility pole on Winkler Drive in Houston. Within a few minutes Officers D. E. Logsdon and R. H. Thomas of the Houston Police Department arrived and found Robertson, who was semi-conscious, '. . . kind of laid across the frontseat.' At about the same time, an ambulance arrived. Officer Logsdon helped take Robertson out of the car and put him in the ambulance to be taken to a hospital. The wrecked car was partially in the street. The utility pole was broken and 'hot' lines were across the street. Men from Houston Power and Light Company came and moved the lines. The officers then took an inventory of the property in the car. They found, among other things, marihuana in the glove compartment. Officers then directed a wrecker to take the car for storage.

Officer Logsdon testified that an investory is made when the driver has been taken to a hospital and when the car is not driveable. He related that it was mandatory for him to make such an inventory because he was responsible for the property. This check was to make '. . . sure the man's property is still there when he comes to pick it up' and if anything were stolen or missing the wrecker driver would be responsible for it. It was stipulated and the record shows that the Houston Police Department required an inventory in such cases. A copy of the inventory was given to the wrecker service and to the accident division office and the auto theft division of the police department. The inventory included in the 'Houston Police Department Record of Towed Vehicle' was admitted into evidence.

The policy of making an inventory is based upon logic. Most citizens would expect their property to be protected where officers are responsible for taking charge of a wrecked car and removing it from a street. When officers make such an inventory, they know that there might be valuables which should be protected. A police department should require such an inventory.

The Fourth Amendment to the Constitution of the United States prohibits unreasonable searches and seizures. In this case there was an inventory and no search as contemplated under the Fourth Amendment. Therefore, there was no unreasonable search. The officers had a duty to protect any property found in the car. They were not looking for evidence to convict Robertson. They had a right to be in the car. A large majority of citizens do not have illegal substances or contraband in their cars and want their property protected. The rights of the law-abiding citizens should be taken into consideration. A special rule should not be made by this Court to prevent such inventories, especially when no constitutional or statutory provision demands it. Inventories made under the circumstances of this case should be commendable, not condemned.

The dissent reasons that the car was not in the custody of, and that it was not impounded by, the police. The officers had a duty to take control of the wrecked car which was partially on the street. They took control of the car and this amounted to custody. When they ordered a private wrecking company to take the car for impoundment, it was impounded just as effectively as if it had been taken to a police compound. What difference should it make if the car was taken to a private lot or city compound? The inventory was made before it was moved and when it was under the control of the officers. There is more reason for making an inventory of property in a car which is to be stored on a private lot than there is reason for one stored at a police compound where it is likely to have better police protection. The more property changes hands, the more chances are that it will be lost unless records are kept.

This case is governed by the recent decision of South Dakota v. Opperman, --- U.S. ---, 96 S.Ct. 3092, 50 L.Ed.2d --- (1976). There, the Supreme Court of the United States recognizes the authority to conduct routine inventory searches under certain circumstances. The case involved an automobile lawfully impounded by police because of multiple parking violations. Following standard procedures, the police inventoried the contents of the car at the impound lot. Marihuana was discovered in the unopened glove compartment. The arrest and conviction of Opperman for possession of marihuana resulted.

In concluding that the police procedure in question was valid, the Supreme Court held that the conduct of the police was not 'unreasonable' under the Fourth Amendment of the United States Constitution. The Court reasoned that there is a distinction between automobiles and homes or offices in relation to the Fourth Amendment. This is due to the inherent mobility of automobiles which, of practical necessity, precludes rigorous enforcement of the warrant requirement. Carroll v. United States, 267 U.S. 132, 153--154, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Coolidge v. New Hampshire, 403 U.S. 443, 459--460, 91 S.Ct. 2022, 2034, 29 L.Ed.2d 564 (1971). The Court further reasoned that the expectation of privacy with respect to one's automobile is significantly less than that relating to one's home or office. This view rests on the fact that the motor vehicle's function is transportation and it seldom serves as one's residence or as the repository of one's personal effects. Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 2469, 41 L.Ed.2d 325 (1974).

The above reasoning points toward and emphasizes the Supreme Court's conclusion in Opperman. The decision was based on 'community caretaking functions' as follows:

'In the interests of public safety and as part of what the Court has called 'community caretaking functions,' (citation), automobiles are frequently taken into police custody. Vehicle accidents present one such occasion. To permit the uninterrupted flow of traffic and in some circumstances to preserve evidence, disabled or damaged vehicles will often be removed from the highways or streets at the behest of police engaged solely in caretaking and traffic-control activities. Police will also frequently remove and impound automobiles which violate parking ordinances and which thereby jeopardize both the poblic safety and the efficient movement of vehicular traffic. The authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge.

'When vehicles are impounded, local police departments generally follow a routine practice of securing and inventorying the automobiles' contents. These procedures developed in response to three distinct needs: the protection of the owner's property while it remains in police custody (citation); The protection of the police against claims or disputes over lost or stolen property (citation); and the protection of the police from potential danger (citation). The practice has been viewed as essential to respond to incidents of theft or vandalism. . . .' (Emphasis supplied) 96 S.Ct. at 3096.

In the instant case, the Houston police were indisputably engaged in caretaking and traffic-control activities. In light of Opperman, the Houston police had the authority to seize and remove appellant's vehicle from the street. It is of no material consequence that they selected a private wrecking company to remove the car pursuant to the exercise of that authority. In this connection, Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), relied on by the Supreme Court in Opperman, is applicable.

In Cady, defendant's vehicle was disabled as the result of an accident. Defendant was intoxicated and later comatose, and therefore could not make arrangements to have the automobile towed and stored. At the direction of the local police the vehicle was towed to a private garage. A warrantless search of the car pursuant to standard police procedures was upheld by the Supreme Court. The sole justification for the search was that it was incident to the caretaking function of the police to protect the community's safety.

Finally, the Supreme Court recognized in Opperman that standard inventories often include an examination of the glove compartment, since it is a customary place for documents of ownership and registration, as well as a place for the temporary storage of valuables.

We hold that in following standard police procedures, the conduct of the police was not 'unreasonable' under the Fourth Amendment.

No error is shown. The judgment is affirmed.

ROBERTS, Judge (dissenting).

Today the majority has created a new exception to the Fourth Amendment of the United States Constitution and Article I, Section 9 of the Constitution of this State. ¹ This exception has been released upon the citizens of this State unsupported by prior case law and without a careful analysis as to when it should or should not be applied. In this sense, the newly created exception differs from the others already in existence. The new exception is justified not...