State v. Atkinson

• Decision Date: 25 September 1984
• Citation: 298 Or. 1,688 P.2d 832
• Parties: STATE of Oregon, Petitioner on review, v. James Henry ATKINSON, Respondent on review. CA A22274; SC S30071.
• Court: Oregon Supreme Court

Page 832

688 P.2d 832

298 Or. 1

STATE of Oregon, Petitioner on review, v.James Henry ATKINSON, Respondent on review.

CA A22274; SC S30071.

Supreme Court of Oregon In Banc.

Argued and Submitted Jan. 25, 1984.

Decided Sept. 25, 1984.

Richard D. Wasserman, Asst. Atty. Gen., Salem, argued the cause for petitioner on review.With him on the petition and brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol.Gen., Salem.

John Daugirda, Deputy Public Defender, Salem, argued the cause for respondent on review.With him on the brief was Gary D. Babcock, Public Defender, Salem.

PETERSON, Chief Justice.

The issue in this case is whether a police inventory of the contents of an impounded automobile without a search warrant violated defendant's right to be secure against unreasonable searches and seizures as guaranteed by the state and federal constitutions.¹

I

A person called the police during early morning hours to report a man acting suspiciously in the neighborhood.The police patrolled the neighborhood and found an unattended car the suspect may have been driving.With some police remaining at the car, others continued to check the area in an attempt to find the suspect.In addition, unsuccessful efforts were made to contact the car's owner to retrieve the vehicle prior to having it towed away.

After approximately three and one-half hours, the car was "impounded" and towed to a locked police storage shed until it could be inventoried.

A few hours later, the police "inventoried" the car, that is, an officer went through the car's interior, including looking under the seats and into the unlocked glove compartment, but not the locked trunk, ² and prepared a detailed list of items in the vehicle.At the completion of the inventory, the items were left in the car.The officer testified that the inventory was conducted in accordance with Polk County Sheriff's Department policy.When asked whether he had been told prior to taking the inventory that the automobile had been seized because it was suspected of being involved in a burglary, the officer who performed the "inventory" of the contents of the vehicle said he had.He also testified that he was "looking for evidence of a crime" while carrying out the standard inventory practice of the department.In the course of the inventory, the inventorying officer opened the unlocked glove compartment and found items which may link defendant to burglaries in the area, items which are the subject of defendant's motion to suppress.

Originally, the state appealed an order allowing, in part, the defendant's motion to suppress.The defendant cross-appealed from the order denying other parts of his motion to suppress.ORS 138.040.The Court of Appeals, 64 Or.App. 517, 669 P.2d 343, reversed and remanded with instructions to suppress a map and bottle found on examining the glove compartment of the defendant's car, stating that the inventory of the glove compartment exceeded what we found permissible under Article I, section 9, of the Oregon Constitution in State v. Keller, 265 Or. 622, 510 P.2d 568(1973).Four judges specially concurring rejected Keller's application to the case but reached the same result based on State v. Lowry, 295 Or. 337, 667 P.2d 996(1983).Two dissenters contended that State v. Keller, supra, does not preclude the inventory of a glove compartment and would affirm the trial court under South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000(1976).

II

The overall principle repeatedly stated in this court and the Supreme Court of the United States is that "[e]xcept in a few carefully defined classes of cases, a search of private property without valid consent is 'unreasonable' unless it has been authorized by a valid search warrant."South Dakota v. Opperman, supra, 428 U.S. at 381, 96 S.Ct. at 3103(Powell, J., concurring);See alsoState v. Greene, 285 Or. 337, 340-41, 591 P.2d 1362(1979).Under the federal constitution, cases of noninvestigatory inventories of the contents of impounded automobiles have been held to be one of those excepted classes.

The only prior pronouncement by this court that touches on an inventory of an automobile apparently assumed that no search warrant is required to inventory the contents of a lawfully impounded vehicle.State v. Keller, 265 Or. 622, 629, 510 P.2d 568(1973).In Keller, this court distinguished the search of a fishing tackle box within a vehicle from a general inventory of the vehicle, holding the former invalid and stating that "there is a delicate balance between conflicting public and private interests--the need to search to protect law officers and car owners and the invasion of Fourth Amendment protected interests of private citizens."265 Or. at 629, 510 P.2d 568.

Until today, this court has not further considered inventories of lawfully impounded vehicles.The Court of Appeals has held that when an automobile is lawfully impounded, the impounding officer may enter the vehicle and conduct an inventory of personal property.State v. Weeks, 29 Or.App. 351, 355, 563 P.2d 760(1977).In State v. Crosby, 35 Or.App. 617, 582 P.2d 40(1978), the Court of Appeals concluded that the locked trunk of a car was within the proper scope of an inventory.35 Or.App. at 622, 582 P.2d 40.

The Supreme Court of the United States has reached the same result.In South Dakota v. Opperman, supra, the Supreme Court held that noninvestigative police inventories of automobiles lawfully within governmental custody are constitutional and not subject to the warrant requirement of the Fourth Amendment.The court concluded that the noncriminal context of inventories and the inapplicability in such a setting of the requirement of probable cause obviate the requirement of search warrants.

"With respect to noninvestigative police inventories of automobiles lawfully within governmental custody, however, the policies underlying the warrant requirement * * * are inapplicable."Opperman, supra, 428 U.S. at 370 n. 5, 96 S.Ct. at 3097 n. 5.

The court concluded that the Fourth Amendment permits a routine police inventory of the closed glove compartment of a locked automobile impounded for ordinary parking violations.³ In a separate concurring opinion, Justice Powell further explained why routine inventories should not be conditioned on warrants issued by a judicial officer.

"Inventory searches * * * are not conducted in order to discover evidence of crime.The officer does not make a discretionary determination to search based on a judgment that certain conditions are present.Inventory searches are conducted in accordance with established police department rules or policy and occur whenever an automobile is seized.There are thus no special facts for a neutral magistrate to evaluate."South Dakota v. Opperman, supra, 428 U.S. at 383, 96 S.Ct. at 3104.

In a recent opinion, Illinois v. LaFayette, 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65(1983), the Supreme Court of the United States further explained the Fourth Amendment's constraint on police administrative methods.

" * * * In South Dakota v. Opperman, supra, * * * [w]e found no need to consider the existence of less intrusive means of protecting the police and the property in their custody--such as locking the car and impounding it in safe storage under guard.* * * [T]he real question is not what 'could have been achieved,' but whether the Fourth Amendment requires such steps; it is not our function to write a manual on administering routine, neutral procedures of the station house.Our role is to assure against violations of the Constitution.

" * * * We are hardly in a position to second guess police departments as to what practical administrative method will best deter theft by and false claims against its employees and preserve the security of the station house."Illinois v. LaFayette, 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65, 71-72(1983).

III

Like the Supreme Court of the United States, we are a judicial, not a legislative body.It is not our function to decide as a matter of policy how, and for what purpose, automobiles or other private property that come into official custody should be examined.That is a matter for politically accountable officials to decide by laws, ordinances, or delegations of rulemaking authority.Our role, as the Supreme Court said in Illinois v. LaFayette, supra, is to assure that such policies and procedures as are adopted do not violate constitutional guarantees.

The Oregon legislature could adopt a uniform standard for dealing with the contents of impounded vehicles, but it has not done so, possibly because different procedures might be appropriate for various circumstances in different communities throughout the state.For instance, a requirement that police attempt to contact the owner of each impounded vehicle before undertaking an inventory might presuppose that all law enforcement agencies have a uniform capability that may or may not exist.Nor are we told whether Polk County has adopted an official policy for dealing with impounded vehicles and their contents.Although, for instance, rolling up the windows and locking the car might be less intrusive than an inventory of its contents, the only issue before us is whether this is the only policy allowed by Article I, section 9, of the Oregon Constitution.We hold that it is not.Rather, we hold that a policy may be adopted and uniformly administered to inventory the contents of ordinary vehicles in order to protect private property and for ancillary purposes under conditions set forth below.

Three principal purposes often are put forward to justify a governmental policy of inventorying impounded personal property.

First, it is asserted that inventories protect the owner's property while in police custody.Once an adequate inventory has been made, the police can take appropriate action to safeguard the contents, as necessary.Theft and...