State v. Perry

• Decision Date: 18 December 1984
• Docket Number: No. 16318,16318
• Citation: 174 W.Va. 212,324 S.E.2d 354
• Parties: STATE of West Virginia v. David D. PERRY, etc.
• Court: West Virginia Supreme Court

Page 354

324 S.E.2d 354

174 W.Va. 212

STATE of West Virginia v. David D. PERRY, etc.

No. 16318.

Supreme Court of Appeals of West Virginia.

Dec. 18, 1984.

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." Syllabus Point 1, State v. Goff, W.Va., 272 S.E.2d 457 (1980).

2. There is no need to confer with the owner or possessor of a car prior to impoundment concerning the disposition of his vehicle and its contents where he is unavailable, or physically or mentally incapable of making arrangements for its protection; or the vehicle has been stolen or has been used in the commission of a crime and its retention as evidence is necessary. However, in the situation where the owner or possessor of a vehicle has been arrested in or near his car, ordinarily, he must be given a reasonable opportunity to make some alternative disposition of the vehicle before the police may impound it for the sole purpose of protecting it and its contents from theft or damage.

John Ernest Shank, Asst. Atty. Gen., Charleston, for appellee.

Barry G. McOwen, Huntington, for appellant.

MILLER, Justice:

This is an appeal from a forfeiture proceeding involving an automobile allegedly used to transport marijuana. ¹ Two questions are raised regarding the inventory search of the vehicle, which is the means whereby marijuana was found in the locked trunk of the vehicle. First, was the arresting officer required to permit David Perry, the defendant, to make some alternative arrangement to police impoundment of the car? Second, did the police exceed the scope of a valid inventory search by opening the locked trunk of the vehicle? We answer the first issue in the affirmative and decline to address the second.

The underlying facts are not substantially disputed. On November 24, 1983, at approximately eleven o'clock in the evening, David Perry was driving his 1977 Chevrolet automobile on Route 60 in Cabell County. His brother, Paul Perry was riding as a passenger. Mr. Perry was directed to pull off the highway by Cabell County Deputy Sheriff Gerald Wall, who observed that the defendant's car had a glaring headlight and an expired license plate sticker.

After the deputy stopped the car, he walked to the driver's side and asked David Perry for his driver's license ² and registration card. ³ The defendant had neither of the requested items nor did he have a certificate of insurance. ⁴ David Perry told the deputy his name, but according to the deputy, he had no identification. The deputy checked with headquarters to determine if the car had been stolen and was advised that the registered owner was David D. Perry.

The deputy then advised Mr. Perry that he was charged with operating a vehicle without a driver's license and would be taken to a magistrate. He also informed the defendant that his vehicle would be towed. When the deputy called the sheriff's office to ask for another deputy to assist him in having the car towed, a Sergeant Bowman was dispatched.

Deputy Wall testified that he had a brief conversation with the passenger, who identified himself as the driver's brother or some other relative. According to Deputy Wall, his recollection of this conversation was vague. Although he thought that the passenger had been drinking, he did not believe him to be incapacitated.

The car had been pulled off the traveled portion of the highway and onto the berm adjacent to a discount store. This area was used for parking by customers of the store. Deputy Wall explained it is departmental policy that when a person is arrested for a traffic violation, his vehicle is towed. He indicated that he had never asked the driver or his brother whether they could make arrangements for the disposition of the car. It was the deputy's position that absent some identification by the driver, David Perry, he could not be sure that he was the owner of the vehicle. He, therefore, believed it was necessary to impound the vehicle.

When Sergeant Bowman arrived, Deputy Wall had a rather brief conversation with him about filling out the inventory form. Deputy Wall then took the defendant to the magistrate's office. He further testified that it is customary to inventory the contents of a vehicle when it is towed in and that when he looked in the car he had seen a black briefcase on the back seat.

Sergeant Bowman, who conducted the actual inventory search, stated that there was a briefcase on the back seat. There was nothing else of value in the interior of the car. At one point, the defendant's brother had attempted to remove the car keys which were in the ignition switch, but had been advised not to do so. After completing the interior inventory, Sergeant Bowman took the car keys and unlocked the trunk where he found a bag of men's clothing and another bag which was folded at the top. Upon unfolding this bag, he saw several plastic baggies which he suspected contained marijuana. About this time, a State Police officer arrived on the scene. He also viewed the contents of the bag and concluded that it contained marijuana. Subsequent tests showed there were 2.8 ounces of marijuana in the bag.

In State v. Goff, W.Va., 272 S.E.2d 457 (1980), we discussed at some length the prerequisites of an inventory search. We stated that the opinion in South Dakota v. Opperman, 428 U.S. 364, 49 L.Ed.2d 1000, 96 S.Ct. 3092 (1976), was somewhat ambiguous as to the prerequisites for a valid inventory search. We, therefore, settled the matter, as had other state courts, under our State Constitution and prescribed these conditions for a lawful inventory search:

"(1) [T]here 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." 272 S.E.2d at 460. (Footnotes omitted). ⁵

In Goff, police officers were investigating a possible breaking and entering at a used car lot office. The defendant, who was observed sitting in a pickup truck parked on the lot, was arrested and taken to the police station. About an hour later, the police returned to the lot and, without a search warrant, made what they later described as an inventory search of the truck. In the glove compartment, they found the title to a 1969 Ford automobile belonging to one of the cars on the lot. This was introduced at trial over the defendant's objection.

We pointed out in Goff that the basis for a valid inventory search "does not arise because the police suspect the vehicle contains contraband or the evidence of a crime," the traditional basis for the warrantless search of motor vehicles. W.Va., 272 S.E.2d at 459. See State v. Moore, W.Va., 272 S.E.2d 804 (1980). See also United States v. Ross, 456 U.S. 798, 72 L.Ed.2d 572, 102 S.Ct. 2157 (1982). Instead, the basis for an inventory search rests on several practical considerations which we identified in Goff as, first, the protection of the owner's personal property located in the vehicle while it is impounded by the police. A related consideration is the protection of the police against claims that the property was lost or stolen. A final point is the protection of the police from any danger that might arise from material contained in the vehicle. ⁶

We rejected the inventory search in Goff because there was no impoundment since the car had been left on the used car lot, and there was no showing that there had been any items of personal property in plain view that would warrant an inventory search.

The validity of an inventory search depends on whether the police have proper grounds to impound a car. As we stated in Syllabus Point 1 of Goff, supra:

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

In note 6 of Goff, W.Va., 272 S.E.2d at 461, we quoted from State v. Singleton, 9 Wash.App. 327, 332-33, 511 P.2d 1396, 1399-1400 (1973), which is frequently cited for its list of grounds for impoundment:

"Reasonable cause for impoundment may, for example, include the necessity for removing (1) an unattended-to car illegally parked or otherwise obstructing traffic; (2) an unattended-to car from the scene of an accident when the driver is physically or mentally incapable of deciding upon steps to be taken to deal with his property, as in the case of the intoxicated, mentally incapacitated or seriously injured driver; (3) a car that has been stolen or used in the commission of a crime when its retention as evidence is necessary; (4) an abandoned car; (5) a car so mechanically defective as to be a menace to others using the public highway; (6) a car impoundable pursuant to ordinance or statute which provides therefor as in the case of forfeiture."

In many of these situations when impoundment of a vehicle is permissible, ordinarily, there is no necessity to contact the owner or possessor of the vehicle because he is unavailable or the vehicle is stolen or has been used in the commission of a crime. This is self-evident from a consideration of the enumerated grounds in Singleton. In (1), where the car is unattended and illegally obstructing traffic, or (2), where there has been an accident and the driver is incapable of dealing with the vehicle, or (4), where the car is abandoned, the owner or possessor of the vehicle is either not physically available for consultation or, if available, is physically or mentally unable to consult. Likewise, in (3), where the car has been stolen, it would be absurd to consult with the thief as to the disposal of the car. Furthermore, as to the other ground in (3), where the car is used in the commission of a crime and its retention as evidence is necessary, there would be no...