State v. Boswell

• Decision Date: 14 January 1991
• Docket Number: No. 18922,18922
• Citation: 111 N.M. 240,804 P.2d 1059,1991 NMSC 4
• Parties: STATE of New Mexico, Petitioner, v. Douglas BOSWELL, Respondent.
• Court: New Mexico Supreme Court

Page 1059

804 P.2d 1059

111 N.M. 240

STATE of New Mexico, Petitioner, v. Douglas BOSWELL, Respondent.

No. 18922.

Supreme Court of New Mexico.

Jan. 14, 1991.

Tom Udall, Atty. Gen., Anthony Tupler, Asst. Atty. Gen., Santa Fe, for petitioner.

Marlowe & Marlowe, P.C., Daniel R. Marlowe, Taos, for respondent.

OPINION

BACA, Justice.

The state petitioned for a writ of certiorari to the court of appeals, which had held The pertinent facts are as follows. Defendant Boswell was apprehended and detained in a grocery store as a suspected shoplifter. The manager held him in an office while the police were summoned. An officer arrived, patted down defendant, and discovered evidence of shoplifting. The officer then asked for identification, which defendant produced from his wallet. Defendant, who was subsequently arrested and taken to the police station for booking, inadvertently left the wallet on a file cabinet. After being booked, he asked about the wallet, and it was determined that the wallet had been left at the store in the manager's office. The officer offered to retrieve the wallet, but defendant said that he would arrange for a friend to pick it up. The officer, however, insisted and returned to the store. He found the wallet on the file cabinet, searched it, and discovered a blotter with LSD. Defendant was charged with possession of controlled substances with intent to distribute. After the district court denied his motion to suppress, defendant entered a guilty plea, reserving his right to appeal the constitutional issue.

                [111 NM 241] that a search of respondent-defendant's wallet was unlawful and violated defendant's fourth amendment rights.  110 N.M. 190, 793 P.2d 1343.   We granted the petition and reverse
                

On appeal we determine whether the search violated defendant's fourth amendment rights. The state argues that, after a valid arrest, defendant did not have a reasonable expectation of privacy in the wallet, that because the wallet could have been searched at the time of arrest or at the station as a search incident to an arrest, the subsequent search was valid, and that the search was valid as a lawful inventory. Accordingly, it contends that the court of appeals erred when it ordered evidence of the contraband discovered as a result of the admittedly warrantless search suppressed.

Defendant maintains the court of appeals properly determined that he had a continuing privacy interest in the wallet, that the search could not be justified as a search incident to an arrest, and that the search did not fall within the ambit of an inventory search.

We find that the officer properly conducted an inventory search of the wallet within constitutional limits as defined in State v. Williams, 97 N.M. 634, 642 P.2d 1093, cert. denied, 459 U.S. 845, 103 S.Ct. 101, 74 L.Ed.2d 91 (1982), State v. Ruffino, 94 N.M. 500, 612 P.2d 1311 (1980), Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987), and Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983), and we do not find it necessary to address the validity of the search as incident to a lawful arrest.

The court of appeals focused on the wallet not being on defendant's person when he was booked to resolve whether the police undertook a proper inventory search. The court recognized that an inventory search done in accordance with established police procedure appropriately may be performed to completely search an arrestee's property and person, but then found:

The problem in this case is that the wallet was not on the defendant's person at the time he was booked. If the wallet had been in defendant's pocket at the time he was booked, it could have been properly searched pursuant to an inventory. Inventory, however, cannot be used as the reason to search the wallet when it was not part of the effects on his person at the time of booking. (Citations omitted.)

In Williams, 97 N.M. at 636, 642 P.2d at 1095, we set forth the requirements for a lawful inventory search: that the police have control or custody of the object of the search; that the inventory is made pursuant to established police regulations; and that the search is reasonable. See Ruffino, 94 N.M. 500, 612 P.2d 1311 (1980). In Williams, we also required that "there must be some nexus between the arrest and the reason for impounding, [although] that nexus need only be reasonable." 97 N.M. at 637, 642 P.2d at 1096. In this case the court of appeals held "that a reasonable nexus did not exist for the police officer to return to take custody of the wallet. There is no evidence the police officer suspected An individual has a reasonable expectation of privacy in a wallet, and, therefore, the search of the wallet implicates the fourth amendment. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Accordingly, for this search to have been lawful, it must fit within an exception, such as the inventory exception, making the search reasonable and therefore constitutionally permissible. Under the appropriate circumstances, a wallet lawfully may be searched in an inventory search. See Lafayette, 462 U.S. at 648, 103 S.Ct. at 2610 (holding "that it is not 'unreasonable' for police, as part of the routine procedure incident to incarcerating an arrested person, to search any container or article in his possession"); People v. Hovey, 44 Cal.3d 543, 749 P.2d 776, 244 Cal.Rptr. 121 (contents of wallet properly searched during inventory), cert. denied, 488 U.S. 871, 109 S.Ct. 188, 102 L.Ed.2d 157 (1988); see generally Annotation, Lawfulness of Warrantless Search of Purse or Wallet of Person Arrested or Suspected of Crime, 29 A.L.R.4th 771, Sec. 11 (1984). Defendant has not contested that the search was not conducted pursuant to regular police procedure.¹ See Florida v. Wells, --- U.S. ----, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990) (inventory search must be conducted pursuant to standardized criteria or established routine designed to produce an inventory, although discretion allowed to police based on the concerns of the search). Moreover, the location of the search, in the store's office rather than the police station, does not invalidate it.² This case turns on the first prong of the test we articulated in Williams, 97 N.M. at 636, 642 P.2d at 1095: whether the police lawfully had custody of the wallet, i.e., was there a reasonable nexus between Boswell's arrest and the seizure of the wallet?

[111 NM 242] that evidence of shoplifting was concealed in the mislaid wallet."

"A police inventory of some possession of the arrestee * * * presupposes that the police had some valid reason for taking custody of that object, for it is only because of such taking of custody that the police can be said to have some obligation to safeguard the contents." 2 W. Lafave, Search and Seizure Sec. 5.5(b) (2d ed. 1987). Property found on the person or in the immediate possession of a lawful arrestee presents no seizure problem and may be inventoried. Lafayette, 462 U.S. at 646-47, 103 S.Ct. at 2609-10. Containers found in a lawfully-impounded vehicle properly may be inventoried. Bertine, 479 U.S. at 372- An inventory is a reasonable search justified by the range of governmental interests that support it. An inventory protects a defendant's property in police custody from theft; conversely, it protects the police from accusations or false claims of theft of the property that was in an arrestee's possession. Moreover, the inventory prevents the introduction into the custodial setting of dangerous instrumentalities that may be concealed in innocent-looking articles. In other words, orderly police administration justifies examination and inventorying of items removed from an arrestee's possession or person. Lafayette, 462 U.S. at 647, 103 S.Ct. at 2610; see Bertine, 479 U.S. at 372, 107 S.Ct. at 741 (1987).

                [111 NM 243] 73, 107 S.Ct. at 741-42.   Generally the police are justified in seizing property if it cannot be left safely at the scene of the arrest.  See United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) (reasonable for police to take items to station if person arrested in public place);  United States v. Grill, 484 F.2d 990 (5th Cir.1973) (justifiable seizure of arrestee's suitcase on departing airplane), cert. denied, 416 U.S. 989, 94 S.Ct. 2396, 40 L.Ed.2d 767 (1974);  cf.  United States v. Wright, 706 F.Supp. 1268 (N.D.Tex.1989) (police seizure of suitcase impermissible and did not justify warrantless search when suitcase under locked guard by independent third party and thus no danger of theft or police liability for false claim)
                

Contrary to the holding of the court of appeals, the lawfulness of an inventory search operates independently from any suspicion by the police of contraband that may be concealed in a container. Probable cause is not required to justify an inventory search. Bertine, 479 U.S. at 371-73, 107 S.Ct. at 741-42 (inventory not investigative tool and search reasonable because of legitimate caretaking interests); South Dakota v. Opperman, 428 U.S. 364, 370 n. 5, 96 S.Ct. 3092, 3097 n. 5, 49 L.Ed.2d 1000 (1976) ("probable-cause approach is unhelpful when analysis centers upon the reasonableness of routine administrative caretaking functions"). The state interests justifying an inventory constitute an independent basis for the reasonableness of the search.³

If the seizure is justified pursuant to an inventory theory, probable cause is irrelevant. The reasonable nexus between the arrest and seizure need not be based on probable cause, but can be based on "all the facts and circumstances of this case in light of [established fourth amendment] principles." Id. at 375, 96 S.Ct. at 3100. Those established principles include the reasonableness of a search of property in police custody for inventory purposes pursuant to established procedures.

The wallet, although on defendant's person at the time of arrest, was not in his...