State v. Gowans, 2

• Decision Date: 08 September 1972
• Docket Number: No. 2,CA-CR,2
• Citation: 500 P.2d 641,18 Ariz.App. 110
• Parties: The STATE of Arizona, Appellant, v. Kenneth Elwood GOWANS, Appellee. 288.
• Court: Arizona Court of Appeals

Page 641

500 P.2d 641

18 Ariz.App. 110

The STATE of Arizona, Appellant, v. Kenneth Elwood GOWANS, Appellee.

No. 2 CA-CR 288.

Court of Appeals of Arizona, Division 2.

Sept. 8, 1972.

Gary K. Nelson, Atty. Gen., Phoenix, Rose Silver, Pima County Atty. by Thomas A. Letnes II, Deputy County Atty., Tucson, for appellant.

Edward P. Bolding, Pima County Public Defender by Darwin J. Nelson, Deputy Public Defender, Tucson, for appellee.

KRUCKER, Chief Judge.

This is an appeal by the State from an order granting a motion to suppress evidence. The defendant, Kenneth E. Gowans, had been charged with possession of marijuana. The sole question to be decided is whether the order of the court suppressing the evidence obtained in a routine inventory of the defendant's automobile was erroneous and if the seizure of the evidence (marijuana) was a result of an illegal search in violation of the Fourth Amendment of the United States Constitution.

Careful scrutiny of the record reveals the following facts. Gowans was stopped on an open highway by an Arizona Highway patrolman because of erratic driving. The officer, believing he was under the influence of intoxicating liquor, immediately arrested defendant for driving under the influence of alcohol and placed him in his patrol car. Because Gowans' car had to be removed from the highway, the officer called for assistance. A routine inventory of the defendant's automobile, including opening and looking in the trunk, was made. The officers noted two garbage disposal-type bags in the trunk which were in plain view. These bags contained a substance not familiar to the arresting officers but another officer who came to the scene identified the contents of the bags as marijuana. The contents were visible without the bags having to be opened or moved in any way.

Under these circumstances, was there an illegal search? It is an almost universal custom to inventory the contents of a motor vehicle when the owner is arrested or in a position where he cannot keep control of the vehicle and it is being removed for storage. This practice serves a two-fold purpose: (1) to protect the owner against loss of articles left in th vehicle and (2) to protect the law enforcement officers and/or the storage facility from assertion of false claims for missing articles.

We have recently dealt extensively with this problem in Boulet v. Arizona, 17 Ariz.App. 64, 495 P.2d 504 (1972); and State v. Ruiz, 17 Ariz.App. 76, 495 P.2d 516 (1972). ¹ We believe the principles enunciated in these two cases and the citations contained therein are dispositive of this appeal.

The difficulty arising in many of these cases suggests that a distinction must be made between an inventory of items in open view and a search, and whether the search is a reasonable one. In Boulet we held that in the course of making an 'inventory' of the visible objects in the car, the officer went too far in looking into the contents of the items inventoried in discovering contraband. In Ruiz we merely held that where the locked automobile was parked in front of the police station, the defendant incarcerated, and scattered bits of a substance resembling marijuana were visible, a warrant should have been obtained before the police were justified in 'searching' under the seat of the car and finding marijuana. I...