State v. Goff

• Decision Date: 02 December 1980
• Docket Number: No. 14151,14151
• Citation: 272 S.E.2d 457,166 W.Va. 47
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Eldred Gene GOFF.

Page 457

272 S.E.2d 457

166 W.Va. 47

STATE of West Virginia v. Eldred Gene GOFF.

No. 14151.

Supreme Court of Appeals of West Virginia.

Dec. 2, 1980.

Syllabus by the Court

1. The right to an inventory search begins at the point where the police have a lawful right to impound the vehicle.

2. An inventory search is not proper when there is no showing that the police saw any items of personal property in the interior of the vehicle, which would warrant the initiation of an inventory search.

3. "In a criminal prosecution, it is constitutional error to give an instruction which supplies by presumption any material element of the crime charged." Syllabus, State v. O'Connell, W.Va., 256 S.E.2d 429 (1979).

David M. Finnerin, Parkersburg, for plaintiff in error.

Chauncey H. Browning, Atty. Gen., Gregory W. Bailey and Homer A. Speaker, Asst. Attys. Gen., Charleston, for defendant in error.

MILLER, Justice:

In this appeal from a conviction of breaking and entering, the defendant Eldred G. Goff assigns several grounds of error. The first relates to the seizure of the title to a 1969 Ford automobile which was found in the glove compartment of his pick-up truck. The second and third errors relate to the State's instructions on intent and burden of proof.

Late in the evening of December 22, 1976, a police officer noticed a 1969 Ford automobile being driven across a used car lot in Parkersburg, West Virginia. Since the lot was closed and the car was being driven without lights, the officer stopped the car. When the driver of the car gave false responses to the officer's questions, he was arrested. His name was William Vandal.

The officer then observed broken glass in front of the car lot office and a pick-up truck parked on the lot in which the defendant Goff was seated. By this time a second police officer arrived at the scene and both proceeded to investigate the broken glass and Goff's presence in the pick-up truck. They arrested Goff and transported him along with Vandal to jail.

An hour or so later, the police in conducting a further investigation of the breaking and entering search the defendant's truck without a warrant, while it was still parked on the used car lot. In the course of what they termed an inventory search, they opened the glove compartment and found a title to a 1969 Ford automobile. This title was introduced into evidence over the defendant's objection.

I.

We have not had occasion to consider the parameters of an inventory search of a vehicle. The United States Supreme Court in South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), recognized that under certain circumstances an inventory search of a vehicle could be made without a warrant. ¹ The predicate for such a search does not arise because the police suspect the vehicle contains contraband or evidence of a crime. ² Rather, it is based on several practical considerations which Opperman identified: (1) the protection of the owner's property while it remains in police custody; (2) the protection of the police against claims or disputes over lost or stolen property; and (3) the protection of the police from potential danger. (428 U.S. at 369, 96 S.Ct. at 3097, 49 L.Ed.2d at 1005.)

We do not view Opperman as extending a blanket authorization to make an inventory search of a vehicle anytime its owner has been arrested and separated from his vehicle. Opperman's facts which were stressed by the Court in its concluding language show that (1) there was an initial lawful impoundment of the vehicle; (2) the driver was not present at the time of the impoundment to make other arrangements for the safekeeping of his belongings; (3) the inventory itself was prompted by a number of valuables in plain view inside the car; and (4) there was no suggestion that the inventory search was a pretext for conducting an investigative search. ³

While it may be argued that these conditions are not an integral part of the Opperman holding, we consider them to be. Even if they are not required by the Fourth Amendment, they comport with our view of the prerequisites of an inventory search under Article III, Section 6 of the West Virginia Constitution. In a number of jurisdictions since Opperman, courts have had difficulty ⁴ in determining whether the foregoing conditions are predicates for a valid inventory search and have either concluded that they are, or have resolved the issue by setting standards under their own constitutional provisions as permitted by Oregon v. Haas, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975). See e. g. Altman v. State, 335 So.2d 626 (Fla.App.1976); Wagner v. Commonwealth, 581 S.W.2d 352 (Ky.1979); State v. Rome, 354 So.2d 504 (La.1978); State v. Goodrich, 256 N.W.2d 506 (Minn.1977); State v. Sawyer, 174 Mont. 512, 571 P.2d 1131 (1977); State v. Slockbower, 79 N.J. 1, 397 A.2d 1050 (1979); Drinkard v. State, 584 S.W.2d 650 (Tenn.1979).

In the present case, the record is unclear as to whether the State attempted to show any lawful impoundment of the truck. After the driver was arrested and removed to the police station, his truck was left parked on the used car lot. It appears that the inventory search was made an hour or two later while the truck was still parked on the used car lot. ⁵ There is no evidence in the record as to whether the truck was ever later removed from the used car lot and taken into custody by the police.

It seems clear from Opperman and cases that proceeded and followed it, that the right to an inventory search begins at the point where the police have a lawful right to impound the vehicle. Brown v. Superior Court, 119 Ariz. 205, 580 P.2d 343 (1978); State v. Boster, 217 Kan. 618, 539 P.2d 294 (1975); Wagner v. Commonwealth, 581 S.W.2d 352 (Ky.1979); State v. McDaniel, 156 N.J.Super. 347, 383 A.2d 1174 (1978); State v. Thirdgill, 46 Or.App. 595, 613 P.2d 44 (1980); Annot. 48 A.L.R.3d 537, 551 (1973). This initial step must be taken otherwise there is no rationale for the inventory search since it is based on protection of the owner's property, as well as the police against claims that property has been lost or stolen from the vehicle, while it is in police custody. Most courts that have considered this point have held that if the car is never taken into police custody then there is no basis for an inventory search. State v. Creel, 142 Ga.App. 158, 235 S.E.2d 628 (1977); State v. LaRue, 368 So.2d 1048 (La.1979); Manalansan v. State, 45 Md.App. 667, 415 A.2d 308 (1980); State v. Gluck, 83 Wash.2d 424, 518 P.2d 703 (1974).

Even if we were to assume that there had been an actual lawful impoundment of the truck, ⁶ the inventory search would not be proper in this case because there was no showing that the police saw any items of personal property in the interior of the vehicle, which would warrant the initiation of an inventory search. Although there is some divergence of opinion in this area, we believe that the more reasoned view requires a sighting of some personal property within the motor vehicle before an inventory search can be initiated. United States v. Mitchell, 458 F.2d 960 (9th Cir. 1972); United States v. Fuller, 277 F.Supp. 97 (D.D.C.1967), conviction aff'd, 433 F.2d 533 (1970); Mozzetti v. Superior Court, 4 Cal.3d 699, 484 P.2d 84, 94 Cal.Rptr. 412 (1971); People v. Counterman, 192 Colo. 152, 556 P.2d 481 (1976); State v. Boster, 217 Kan. 618, 539 P.2d 294 (1975); State v. Achter, 512 S.W.2d 894 (Mo.App.1974); State v. All, 17 N.C.App. 284, 193 S.E.2d 770 (1973), cert. denied, 414 U.S. 866, 94 S.Ct. 51, 38 L.Ed.2d 85 (1973); State v. McDougal, 68 Wis.2d 399, 228 N.W.2d 671 (1975).

The basis for this rule is that unless some personal property is seen in plain view in the vehicle there is little, if any, basis for an inventory search. The purpose for a routine police inventory search is to secure personal property from being stolen or lost while the car is in custody, but without any visible personal property there is a diminished likelihood that the car will be broken into. On the other hand, it must be remembered that once the vehicle has been impounded the police have the right to secure it by rolling up the windows and locking the doors. Any personal property seen in the course of this action can lead to a fuller inventory search. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). ⁷

We conclude under the foregoing law that the State failed to prove the prerequisites for a valid inventory search. There was no proof that the vehicle was in fact ever impounded nor was there any demonstration that there were articles of personal property in plain view inside the truck. Therefore, the 1969 Ford title should not have been admitted as evidence.

II.

The next error raised addresses a jury instruction that utilized the following language: "The law does not require, however proof amounting to an absolute certainty nor proof beyond the possibility of mistake." In State v. Byers, W.Va., 224 S.E.2d 726 (1976), we held the State's reasonable doubt instruction to be erroneous because it permitted the jury to impose their own personal standard instead of a common legal standard as to what constitutes a reasonable doubt. The instruction in Byers contained language similar to the portion above quoted. ⁸ In Byers, we declined to hold the "proof amounting to absolute certainty nor proof beyond the possibility of mistake" erroneous standing alone.

In State v. Starr, W.Va., 216 S.E.2d 242 (1975), we stated that instructions which vary the reasonable doubt standard or attempt to explain it "are strongly discouraged, because they certainly confuse the jury as to the meaning of reasonable doubt and may by themselves be prejudicial to the defendant for the obvious reason that the jury is invited to convict on a lesser standard of proof." A similar admonition can be found in State v. Powers, 91 W.Va. 737, 113 S.E. 912 (1922).

We, as well as the United States...