State v. Opperman

• Decision Date: 15 April 1975
• Docket Number: No. 11440,11440
• Citation: 89 S.D. 25,228 N.W.2d 152
• Parties: STATE of South Dakota, Respondent, v. Donald OPPERMAN, Petitioner.
• Court: South Dakota Supreme Court

Page 152

228 N.W.2d 152

89 S.D. 25

STATE of South Dakota, Respondent, v. Donald OPPERMAN, Petitioner.

No. 11440.

Supreme Court of South Dakota.

April 15, 1975.

Earl Mettler and Tom Lehnert, Asst. Attys. Gen., Pierre, for respondent; Kermit A. Sande, Atty. Gen., Pierre, Arthur L. Rusch, State's Atty., Vermillion, on the brief.

Robert C. Ulrich, Vermillion, for petitioner.

WINANS, Justice.

Defendant-appellant was convicted of possession of less than one ounce of marijuana in violation of SDCL (1967) 39--17--95. He contends, as he did in the court below, that it was error for the trial judge to allow the product of the search and all fruits flowing from it to be introduced into evidence because the search was in violation of the Fourth Amendment to the United States Constitution.

The facts surrounding this search are as follows: During the early morning hours of December 10, 1973, Vermillion police officer, William Herrick, issued a parking ticket to appellant's automobile pursuant to a Vermillion ordinance which prohibits parking in the downtown area from 2:00 A.M. to 6:00 A.M. At approximately 10:00 A.M. on the morning of December 10th a metermaid for the City of Vermillion issued another ticket to appellant's vehicle for an expired parking meter violation. She returned to the station and informed Police Officer Frank that the vehicle had been issued a second ticket.

Officer Frank went to the car and inspected the tickets. He then called for the assistance of a tow truck operator who towed the vehicle to the city impound lot. At this time the vehicle was locked and all windows were closed. The police officer ordered the tow truck operator to break into the vehicle, which he succeeded in doing by unlocking the door with a tool. Frank then seized a number of articles, among which was a watch on the dashboard. These articles were in plain view and are not in issue for the purposes of this appeal.

After securing all articles of value within the area of his vision, the officer continued his exploration of the vehicle by entering the closed console where he found and seized a plastic bag containing a leafy substance which was later determined to be marijuana.

Prior to this seizure Frank had no probable cause to believe that the automobile contained contraband, nor was appellant under arrest. His car was towed for violating a mere parking ordinance and was searched pursuant to a Vermillion Police Department procedure.

I

As a threshold question we must decide if a detailed inventory of a private vehicle is a search which falls within the Fourth Amendment prohibition against unreasonable searches and seizures.

The Supreme Court of the United States has not decided whether an inventory procedure is a search. In Cady v. Dombrowski 1973, 413 U.S. 433, 442, 93 S.Ct. 2523, 2528, 37 L.Ed.2d 706, 715 (Fn.), Justice Rehnquist, noting the state's argument that an inventory is not a search because it is not conducted to uncover evidence of a crime, said, 'We need not decide this issue'. This court, however, must. Logic and well-reasoned decisions from other jurisdictions lead us to conclude that an intrusion into a citizen's vehicle, as in the instant case, is a search.

The California Supreme Court, in a factual situation close to the instant case, decided that an inventory procedure conducted pursuant to a police regulation is a search cognizable under the Fourth Amendment. See Mozzetti v. Superior Court of Sacramento County, 1971, 4 Cal.3d 699, 94 Cal.Rptr. 412, 484 P.2d 84.

In that case defendant was removed to a hospital after sustaining injuries in a two-car collision. Her vehicle was blocking the roadway and arrangements were made to have it towed to a storage facility pursuant to a California statute. Prior to towing, in accordance with standard police department procedure, an officer of the Sacramento Police Department prepared an inventory of the contents of defendant's automobile. He opened an unlocked suitcase in the rear seat of the vehicle, apparently to determine if it contained anything of value. A plastic bag containing marijuana was found. Defendant's motion to suppress the evidence was rejected by the trial court. But on appeal the Supreme Court held that error was committed when the evidence found in the closed suitcase was not suppressed.

The prosecution in Mozzetti, as in the instant case, sought to validate the inventory of defendant's vehicle by distinguishing between an inventory and a search. The state contended that an inventory is conducted not to uncover evidence of criminal activity, but to prevent the theft of articles left in the car. Thus it was argued the procedure is not a Fourth Amendment search.

Rejecting this theory the Supreme Court of California said, and we concur, that:

'It seems undeniable that a routine police inventory of the contents of an automobile involves a substantial invasion into the privacy of the vehicle owner. Regardless of professed benevolent purposes and euphemistic explication, an inventory search involves a thorough exploration by the police into the private property of an individual. In that process suitcases, briefcases, sealed packages, purses--anything left open or closed within the vehicle--is subjected without limitation to the prying eyes of authorities. Merely because the police are not searching with the express purpose of finding evidence of crime, they are not exempt from the requirements of reasonableness set down in the Fourth Amendment. Constitutional rights may not be evaded through the route of finely honed but nonsubstantive distinctions.' (emphasis supplied), 94 Cal.Rptr. at 416, 484 P.2d at 88.

The Fourth Amendment's prohibition against unreasonable search and seizure serves as a protective border between necessary investigations by governmental agents and the constitutional grant of privacy to our citizens. Rejecting a restricted interpretation of this amendment the Supreme Court stated:

'The basic purpose of this Amendment, as recognized in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.' Camara v. Municipal Court, 1967, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930, 935.

Contrary to this expression of the purpose of the Fourth Amendment by the United States Supreme Court, the State contends that if this Court approves inventory searches, we will not thereby give police an unbridled power to search for evidence without justification because a valid inventory does not have as its motive a desire to find evidence. We cannot accept this contention. As previously noted, the Fourth Amendment protects our citizens' right to privacy and it is mere semantics to say that a detailed search of one's car is not a substantial invasion of privacy, even if it is made for the professedly benevolent purpose of theft prevention. This Court does not subscribe to a limited and semantical reading of the concept of 'search' as used in the Fourth Amendment. Rather, we believe that that Amendment:

'* * * governs all intrusions by agents of the public upon personal security, and * * * (makes) the scope of the particular intrusion, in light of all the exigencies of the case, a central element in the analysis of reasonableness. * * * This seems preferable to an approach which attributes too much significance to an overly technical definition of 'search,". (citations omitted) Terry v. Ohio, 1968, 392 U.S. 1, 18 Fn. 15, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889, 904.

The Eighth Circuit Court of Appeals has also refused to attribute too much significance to an overly technical definition of 'search'. In United States v. Lawson, 8 Cir., 1973, 487 F.2d 468, 472, the Court said it would not be bound by a

* * * highly technical construction of the meaning of 'search,' unwarranted in our view of the Fourth Amendment. To consider an inventory procedure not to be a 'search' does violence to the concept of the Fourth Amendment as a protection of the privacy of the citizenry against unwarranted invasion by government officials.'

In Lawson the Court upheld the lower court's holding granting defendant's motion to suppress evidence in the form of a revolver seized from the trunk of his impounded car by local police officers in Aberdeen, South Dakota. The Court held that because the only justification for the search of the automobile was its mere possession by the police, the gun found in the locked trunk was improperly seized and was inadmissible as evidence.

It should be noted that in Lawson the defendant was in police custody, on a charge of passing insufficient funds checks when his car was impounded and searched. The warrantless search there could conceivably have been justified as being incident to a lawful arrest. See Chimel v. California, 1969, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685. No such justification is present in the instant case where the only violation by defendant was that of a parking ordinance.

Were this Court to hold that an inventory is not a 'search' within the meaning of the Fourth Amendment we would be placing government agents in a better position when they have no reason to search, because then a general exploratory 'inventory' will be upheld; but if required to secure a warrant, they would have to describe with particularity the place to be searched and the articles to be seized. In Camara, supra, the Supreme Court gave expression to the inconsistency which would result from removing inventory searches from the larger category of 'searches' which fall within the purview of the Fourth Amendment.

'It is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior.' 387 U.S. at 530, 87 S.Ct. at 1732, 18 L.Ed.2d at 936.

Because a holding by us that inventories are not searches would lead to the encouragement of fishing...