State v. Catlette

• Decision Date: 22 August 1974
• Docket Number: No. 11316,11316
• Citation: 221 N.W.2d 25,88 S.D. 406
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Clyde Richard CATLETTE, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 25

221 N.W.2d 25

88 S.D. 406

STATE of South Dakota, Plaintiff and Respondent, v. Clyde Richard CATLETTE, Defendant and Appellant.

No. 11316.

Supreme Court of South Dakota.

Aug. 22, 1974.

N. Dean Nasser, Jr., Asst. Atty. Gen., Pierre, for plaintiff and respondent; Kermit A. Sande, Atty. Gen., Pierre, Thomas P. Tonner, State's Atty., Brown County, on the brief.

James A. Wyly, Richardson, Groseclose & Kornmann, Aberdeen, for defendant and appellant.

DOYLE, Justice.

This is an appeal from a jury verdict finding the defendant guilty of burglary in the third degree.

Two officers of the Aberdeen Police Department were on routine patrol during the early morning hours of January 6, 1973. At approximately 2 a.m., as they were circling a service station using a spotlight, they noted the glass in one of the back doors to the station was broken. At about the same time, the officers saw the defendant ¹ in his vehicle leaving the parking lot located behind the service station. The officers, who had previously seen the defendant and his car in the neighborhood, stopped the defendant and arrested him for public intoxication. He was taken into custody and his vehicle was driven by a police officer to the police station parking lot. No search was made of the defendant's vehicle at the service station. Approximately one hour after the arrest, two officers conducted a warrantless search of the defendant's vehicle and seized a tire iron and a small hatchet, the handle of which contained cuts with glass particles in it. These items were found beneath the front seat of the car, and glass particles were discovered on the floorboard of the driver's side of the vehicle. Based upon this evidence the defendant was charged with burglary in the third degree. The defendant contends the search and seizure were illegal and, therefore, the evidence obtained should have been suppressed. He further contends that the evidence introduced at the trial is insufficient to support a guilty verdict in this case.

The state argues that the search was conducted pursuant to a written policy ² of the police department which states that all impounded vehicles must be searched in order to safeguard any valuables located therein and, thus, was an inventory search, and that the evidence introduced at trial is sufficient to sustain the verdict.

While we affirm the lower court's admission of the evidence for reasons to be stated later, we cannot agree with the state that this search was valid solely because of the Aberdeen Police Department regulation. In reaching this conclusion we rely mainly on Cady v. Dombrowski, 1973, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706, and United States v. Lawson, 1973, 8 Cir., 487 F.2d 468.

Cady involved an off-duty Chicago policeman who was involved in an auto accident near Kewaskum, Wisconsin. The Kewaskum police believed that Chicago police were required to carry their service revolvers at all times, and they wished to locate the weapon to keep it out of the hands of unauthorized persons--a legitimate desire to insure public safety. Since the off-duty policeman was comatose and in the hospital, and since the weapon was not on his person, the Kewaskum police searched the wrecked vehicle without consent and without a warrant to locate the revolver. The vehicle was being stored at a private garage without a police guard making access by vandals relatively easy. During this search several bloodstained items were discovered in the front seat and in the trunk of the car. These items linked the Chicago policeman to a murder of which he was eventually convicted.

While the opinion in Cady v. Dombrowski, supra, reveals that the search for the revolver was standard procedure, we do not believe that fact had any relation to the validity of the search. The admissibility of the evidence was founded on two grounds. First, there was Present a 'constitutionally reasonable', noncriminal justification for making an initial intrustio which placed the evidence in 'plain view'. This justification was the good faith desire to protect the public from a dangerous weapon. Secondly, there was Absent all desire to obtain evidence for a criminal proceeding. ³ The fact that the search was standard procedure is oblique in relation to the line of thought that must be followed. The determinative point is whether the reason behind the standard procedure creates a 'constitutionally reasonable' justification for the initial intrusion in light of the facts at hand. ⁴

We must first look to see whether there is present a noncriminal 'constitutionally reasonable' justification, whether or not manifested by a police regulation, that will uphold not only the initial intrusion but also the extent of that intrusion. Next, the record must show an absence of investigative motives on the part of the police in order to prevent law enforcement authorities with ostensibly valid motives from writing their own exception to the Fourth Amendment.

The very same regulation we are considering here was at issue in United States v. Lawson, 1973, 8 Cir., 487 F.2d 468, a post-Cady case. In Lawson the defendant was arrested at the Aberdeen Holiday Inn on a charge of writing bad checks. His locked car was in the motel lot and was taken to the Aberdeen police station. The next day the car was searched pursuant to the instant regulation and a .22 caliber revolver was found in the locked trunk. The defendant was indicted for transporting a stolen firearm in interstate commerce ⁵ and for transporation of a firearm from West Virginia to Aberdeem by a convicted felon. ⁶

In United States v. Lawson, supra, the court recognized that 'When determining the legality of an automobile search, a court must determine its reasonableness under all the circumstances presented * * *.' 8 Cir., 487 F.2d 468. In discussing other cases which have held inventory searches valid, the court noted that they do not

'appear to have given consideration to the Scope of the intrusion involved in the particular cases as measured by the exigencies of the situation. Rather, they appear to weigh heavily the asserted need to inventory to the exclusion of Fourth Amendment considerations. The Fourth Amendment requires courts to 'focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of private citizens.' (citation omitted)

'This approach, of necessity, requires a balancing of the need to search in a particular case against the scope of the particular intrusion.' 8 Cir., 487 F.2d at 474. (emphasis supplied)

The court there went on to hold that

'While police custody may justify reasonable measures to protect the vehicle itself (I.e., rolling up the windows and locking the doors), or property within plain view in the automobile, such reasonable protective measures do not extend to breaking into a locked trunk.' 8 Cir., 487 F.2d at 475.

The court's discussion in United States v. Lawson, supra, implies to us that in that case reasonableness ended with the removal of objects within plain sight-objects which when spotted by a passing vandal would provide the temptation for exploration into the vehicle and damage to its contents. Just as the situation in Cady v. Dombrowski, supra, demanded the locating of the revolver to protect the public, the facts in Lawson did not justify a search of the trunk merely to protect the police from potential liability.

In the instant case, we find that the scope of the intrusion here, if done for noninvestigative reasons, was reasonably related to the permissible purpose of preventing police liability. The record reveals that the hatchet and tire iron could possibly have been seen from outside the car. ⁷ They were in a position so that the police in trying to remove possible temptation from vandals would have found the hatchet and tire iron in 'plain view'. See Cady v. Dombrowski, supra, and Harris v. United States, 1968, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067.

We do not believe, however, that the officers who searched the car were only thinking of possible police liability. The arresting officers testified at trial that the defendant was arrested so that the possible burglary could be investigated, ⁸ and that no search warrant was obtained because they believed the search at the police station was incidental to the arrest. ⁹ The implication is that if they were searching incident to an arrest their purpose was to gain evidence leading to the solution of the crime that prompted the arrest. In such a case we hold that the incidental purpose of avoiding police liability, which admittedly lies behind the police regulation, cannot constitutionally justify the investigative search here. To do so would be to allow 'Fourth Amendment protection in this area * * * (to) approach the evaporation point.' Chimel v. California, 1969, 395 U.S. 752, 765, 89 S.Ct. 2034, 2041, 23 L.Ed.2d 685, 695.

This is not to imply, however, that this search of Catlette's car does not fall under any exception to the Fourth Amendment warrant requirement. While the search cannot be justified as incident to an arrest, ¹⁰ it was conducted under conditions presenting probable cause and exigent circumstances. Chambers v. Maroney, 1970, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419, 428. The trial court held that probable cause to arrest the defendant existed at the service station, and we too hold that probable cause to search the car was present. Broken glass was observed in the back door of the service station, a car was seen pulling out of the back lot--a place peculiarly located so that traffic not dealing with the service station would have no occasion to use it--and the defendant was known to have other burglary convictions. We think such facts would have justified a search at the service station.

It was held in Carroll v. United States, 1925, 267 U.S. 132, 153, 45 S.Ct. 280, 285, 69 L.Ed. 543, 551, that it is...