State v. Roth, 63741

• Decision Date: 13 May 1981
• Docket Number: No. 63741,63741
• Citation: 305 N.W.2d 501
• Parties: STATE of Iowa, Appellee, v. Gary Joseph ROTH, Appellant.
• Court: Iowa Supreme Court

Page 501

305 N.W.2d 501

STATE of Iowa, Appellee, v. Gary Joseph ROTH, Appellant.

No. 63741.

Supreme Court of Iowa.

May 13, 1981.

Jody A. Dible and Paul D. Miller, Woodbury County Public Defenders, for appellant.

Thomas J. Miller, Atty. Gen., John P. Messina and Douglas F. Staskal, Asst. Attys. Gen., and Patrick C. McCormick, Woodbury County Atty., for appellee.

Considered en banc.

UHLENHOPP, Justice.

This appeal presents the issue of the constitutionality of inventorying the contents of a motor vehicle which Woodbury County sheriff's personnel impounded.

Deputy Sheriff David Amick testified:

Q. In reference to your routine investigations, what is the standard operating procedure for a sheriff or a deputy in Woodbury County in a situation where a motor vehicle is to be transported back to the station after an arrest has been made? A. Anytime a vehicle is left in our custody for any time whatsoever, for the purposes of towing or whatever the purpose may be, when the vehicle is our responsibility, we inventory the vehicle for any content that may be of value in the vehicle, and this is signed by whoever receives it from us, usually the wrecker service. Therefore, any valuables are recorded and signed for should anything come up missing at a later date that we'll know what was in the vehicle at the time it was towed.

Q. Do you do this as a matter of course in every investigation that you make that involves a motor vehicle? A. Anytime the vehicle is seized or towed by our department, it's the department policy that it will be inventoried.

Q. And is your inventory limited to items that are in plain view, or do you go beyond that? A. We go beyond that. We look anywhere that we think there could be anything of value placed. Many times we'll find a billfold containing money under the seat, or tools in the trunk or whatever. Anywhere we think that someone would have access to, say a wrecker driver or anybody else, we check for value.

Q. And do you list those items that you find on a form? A. Anything that's of value we do.

At about 3:00 a. m. on April 11, 1979, Deputy Sheriff Royce G. McGuire was on duty in a patrol car in a rural area. After observing a car containing two occupants, he "pulled it over" and stopped it. He testified at the subsequent suppression hearing:

Q. And what were your reasons for pulling the vehicle over? A. Okay. As I approached the City of Sloan from the east I was westbound I noted the vehicle coming from the Interstate going east on 75 or Highway 141. It approached the intersection of Highway 75, stopped at the stop sign, made a right turn, went approximately fifty to a hundred yards and made a U-turn, came back to the intersection and went east on 141, went approximately fifty to a hundred yards again, made another U-turn, came back to the Intersection and went north on Highway 75 through the city of Sloan.

Q. What were your reasons for pulling this car over? A. As I approached Highway 75 and started north, the vehicle was approximately 150 to 200 yards in front of me. As I followed it through the city of Sloan, it crossed over the center line, driving left of center approximately three times. And on the north edge of Sloan when it made corrective action to bring itself back into the north-bound lane, it went completely off of the traveled portion of the road onto the right-hand shoulder of the road.

Q. And what did that indicate to you, if anything? A. That the driver was either tired and sleepy, or possibly intoxicated.

Q. You then commenced to pull the vehicle over? A. That's correct.

McGuire observed and talked with the driver, administered field tests for intoxication, concluded that the driver was intoxicated, arrested him for driving while intoxicated, and placed him in the patrol car. McGuire then saw and talked with defendant Gary Joseph Roth, who was a passenger in and the owner of the car, smelled his breath, observed his eyes and balance, concluded that he also was intoxicated, arrested him for public intoxication, and placed him too in the patrol car. McGuire saw a partially empty bottle of whisky on the car seat, took possession of it, and later deposited it with the "I.D. Bureau" when he escorted the arrested men to the station.

McGuire testified further:

Q. And would it be a standard operating procedure in a factual situation as the one that we have here for your office to tow the vehicle in? A. Yes, it is. Anytime we make an arrest and we're unable to release the vehicle to somebody at the scene, then we're responsible for the vehicle and we have it towed for safekeeping.

Accordingly, McGuire radioed for a wrecker and for help. Deputy Amick responded to the call for assistance. McGuire told him to inventory the contents of the car and stand by it until the wrecker arrived.

Amick followed usual procedure in looking through the car for valuables, under the seat, on the floor, in the glove compartment, and in the trunk. Apparently the trunk lid on this car, like those on cars generally, automatically locks when latched, and is opened by a key rather than by a handle. Amick obtained the key for the trunk from the ignition where the occupants had left it. He testified:

Q. Deputy, would it be a correct statement, then, that at the time that you proceeded to check the trunk of the vehicle out, that at that time you were not searching for criminal evidence? Would that be correct so far? A. That's correct.

Q. And that your search your inventory was being performed merely to catalog and secure the contents of that vehicle? A. That's correct.

In taking inventory, Amick found nothing of value to list in the passenger compartment of the car. In the trunk he observed two items. One was a Craftsman tool box containing miscellaneous tools; so he listed it. The other was a paper sack to the right of the wheel well, containing about two pounds of marijuana. He took possession of this item and made a written report of it.

Amick stood by the car to protect it until the wrecker arrived. After turning the car over to the towing firm personnel, he delivered the marijuana together with the whisky to the I.D. Bureau.

The county attorney subsequently charged defendant with possession of marijuana with intent to deliver. Defendant moved to suppress the marijuana, contending that Amick conducted an unconstitutional search and seizure. After a hearing, the district court overruled the motion.

Defendant sought discretionary review of the district court order, which we granted. § 814.6(2), The Code 1979. We later transferred the case to the Court of Appeals, which reversed the district court order by a vote of three-to-two. The State applied to us for further review, and we granted the application. Our review of the district court order, like that of the Court of Appeals, is de novo. Bettuo v. Pelton, 260 N.W.2d 423, 425 (Iowa 1977).

I. The Constitutional clause. This search and we will assume it was a search was conducted without a warrant. Under the exclusionary rule, evidence obtained by law officers in violation of the Fourth Amendment to the United States Constitution is inadmissible in evidence in state as well as federal criminal trials. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081, 1090 (1961). That Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Warrantless searches are unconstitutional if they are unreasonable and reasonableness depends upon the circumstances of the particular case. Cooper v. California, 386 U.S. 58, 59, 87 S.Ct. 788, 790, 17 L.Ed.2d 730, 732 (1967). They are per se unreasonable unless they fall within carefully drawn exceptions to the warrant requirement. Camara v. Municipal Court, 387 U.S. 523, 528-29, 87 S.Ct. 1727, 1731, 18 L.Ed.2d 930, 935 (1967).

II. Motor vehicle inventory exception. The State does not seek to justify the present inventory of the contents of the vehicle on the ground that probable cause existed. Neither the deputies nor the Attorney General claims probable cause existed to search for contraband; on the contrary, the officers disclaim any intent to look for drugs. See State v. Holderness, 301 N.W.2d 733 (Iowa 1981). Nor is this a case in which an officer opened locked personal luggage without a warrant although he had time and opportunity to obtain one. See State v. Schrier, 283 N.W.2d 338 (Iowa 1979). This case is presented by the State as coming within the motor vehicle inventory exception.

Differing from the probable cause and personal luggage cases, the impounded motor vehicle situation presents a practical problem for law officers. As in this case, officers must frequently remove occupants from vehicles at night on criminal charges. The vehicles can hardly be left unattended; they may be broken into or stripped. If the officers call third parties to tow in the vehicles, they run the risk that contents of the passenger and trunk compartments may disappear in the process, or even after the vehicles are stored. They also run the risk of claims that they themselves stole items from the compartments. The officers thus have the problem of how to protect themselves and their governmental units from civil liability. The former days are no more when the officers and their governmental units could interpose an absolute defense simply from the performance of a governmental function. See Franks v. Kohl, 286 N.W.2d 663, 666-71 (Iowa 1979) (liability of public officers); chs. 25A, 613A, The Code (governmental tort liability).

The United States Supreme Court took a practical approach to this problem in Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), and South Dakota v. Opperman, ...