State v. Sterger

• Decision Date: 06 March 1991
• Docket Number: No. 900078-CA,900078-CA
• Citation: 808 P.2d 122
• Parties: STATE of Utah, Plaintiff and Appellee, v. Michael Allen STERGER, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 122

808 P.2d 122

STATE of Utah, Plaintiff and Appellee, v. Michael Allen STERGER, Defendant and Appellant.

No. 900078-CA.

Court of Appeals of Utah.

March 6, 1991.

Phillip L. Foremaster, St. George, for defendant and appellant.

R. Paul Van Dam, State Atty. Gen., and Dan R. Larsen, Asst. Atty. Gen., Salt Lake City, for plaintiff and appellee.

OPINION

Before BENCH, JACKSON and RUSSON, JJ.

JACKSON, Judge:

This is an interlocutory appeal from the trial court's denial of two motions to suppress evidence consisting of controlled substances, drug paraphernalia and a sample of defendant's blood which was obtained following an automobile accident.

Defendant seeks review of the following issues: (1) whether the inventory search of his automobile was authorized and legal under the existing circumstances; (2) and whether the sample of his blood was legally taken. We affirm as to the evidence obtained during the inventory search and remand as to the blood sample.

FACTS

On July 23, 1989, the vehicle in which defendant, his wife and two passengers were riding, left the road and collided with an embankment. The accident took place in a remote area of eastern Garfield County, Utah. Defendant left the vehicle and went for help. A helicopter transported defendant's wife and the two passengers to a hospital in Page, Arizona. Prior to leaving the accident site, one of the passengers accused defendant of being drunk and causing the accident. The other passenger died en route to the hospital. Defendant, who appeared to be the least injured was transported to the Bullfrog Clinic, a nearby medical facility.

Deputy Shawn Draper of Garfield County arrived shortly after the accident. After the passengers had been transported for medical attention, a tow truck arrived to remove the inoperative vehicle from the road. Because the vehicle was locked, Draper used a "slim jim" to force open one of the doors. Draper then inventoried the contents of the vehicle. During the inventory, Draper opened a camera case and found a film canister, which he also opened. He then seized a green leafy substance found inside the canister, believing it to be marijuana. After discontinuing the inventory, Draper had the vehicle towed to his home in Ticaboo, Utah, where he planned to continue the inventory. After the tow truck left the scene, Draper drove to the Bullfrog Clinic, where defendant had been transported, and called the Sheriff's office to determine how to proceed. Draper was instructed to have blood drawn from defendant.

Draper told defendant he was required to submit to a blood test since he had been involved in an accident. Defendant was not told he could refuse, and he was not under arrest at this time. William Patrick Quinn, a certified park medic, summoned Peter Hollis, a physicians assistant employed by the Bullfrog Clinic, to take the blood. Hollis explained to defendant that Draper wanted the blood taken, and proceeded to take the blood. After several unsuccessful attempts by Hollis, Quinn located a vein and started the catheterization. After defendant's blood was taken, Draper transported him to Koosharem, Utah, and placed him in the custody of another deputy. The test revealed that defendant's blood alcohol level was within the legal limit, but traces of THC, a marijuana by-product were present.

The day following the accident, defendant's vehicle was towed from Draper's home to a state certified impound yard. Draper completed his inventory of the items in the vehicle two days after the accident. Draper testified that he opened all closed containers, except canned goods. In a Tupperware container, Draper found marijuana and drug paraphernalia. He seized these items. All of the items found in the vehicle were eventually listed on an inventory sheet by Draper.

At his pretrial hearing, defendant moved to suppress the contents of the film canister, the contents of the Tupperware container, and the results of the blood test. Defendant alleged that these items were illegally seized. The trial court denied his motions and this appeal followed.

At the outset, this court must determine if defendant waived his state constitutional claims. The State asserts that the lower court had no such arguments before it and therefore the issue was decided only under the United States Constitution. We agree. This court has often urged counsel, most recently in State v. Bobo, 803 P.2d 1268, 1272-73 (Utah Ct.App.1990), to include more than a "nominal allusion" to state constitutional rights in appellate briefs and arguments. In the present case, defendant failed to brief or argue state constitutional guarantees at either the pretrial hearing or on appeal. Accordingly, we decline to consider his arguments based on the Utah Constitution.

STANDARD OF REVIEW

Findings of fact supporting a trial court's decision on a motion to suppress are reviewed under the "clearly erroneous" standard of Utah R.Civ.P. 52(a). State v. Hargraves, 806 P.2d 228, 231 (Utah Ct.App.1991) (citing State v. Palmer, 803 P.2d 1249 (Utah Ct.App.1990).

INVENTORY SEARCH

Deputy Draper testified that he took custody of defendant's car, inventoried its contents, and had the car removed from the scene of the accident. Defendant first argues Draper did not have to impound the car but could have left it locked and where it was. This assertion is without merit. Defendant's car was partially blocking the road in a remote area where the accident occurred. The front windshield was shattered and the car inoperable. All of the occupants had been taken for medical attention and Draper had no opportunity to ask defendant what he wanted done with the car. ¹ "[T]he existence or absence of justification for the impoundment of an automobile may be determined from the surrounding circumstances." State v. Johnson, 745 P.2d 452, 454 (Utah 1987) (citations omitted). Given the condition of defendant's car and where it was located after the accident, there was justification for taking the car into police custody.

Before defendant's car was towed from the accident scene, Draper inventoried its contents. Inventory searches conducted under these circumstances are justified, Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 2528, 37 L.Ed.2d 706 (1973), and it is well settled that such a search is an exception to the warrant requirement of the fourth amendment. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); State v. Earl, 716 P.2d 803, 805 (Utah 1986); State v. Shamblin, 763 P.2d 425, 426 (Utah Ct.App.1988). Inventory procedures meet three distinct needs: (1) to protect individual property in police custody; (2) protect police against claims of loss or theft of property; and (3) detect dangerous conditions of instrumentality within impounded vehicles. Johnson, 745 P.2d at 454 (citing Opperman, 428 U.S. at 369, 96 S.Ct. at 3097). Having determined that Draper was authorized to take custody of defendant's vehicle, a concomitant right existed to examine and inventory its contents. See State v. Criscola, 21 Utah 2d 272, 444 P.2d 517 (1968).

Our analysis does not stop at determining that the impoundment and inventory search of defendant's car were justified. We must also determine if the search was conducted for inventory purposes, in a legal manner, and not merely as a "fishing expedition for evidence." Defendant alleges that, even if an inventory search was authorized, it was illegal because it was not carried out pursuant to standardized procedures. ²

Bifurcated Inventory Searches

The Garfield County Sheriff's Department has written procedures governing when the contents of a vehicle shall be inventoried, and how that inventory shall be carried out:

4.05 Vehicle Inventories

(1) Any vehicle impounded shall be inventoried. A written inventory shall be made of all contents of vehicle, both in opened, closed and/or locked containers. The trunk and also any compartments shall be opened and the contents inventoried. All evidence seized in any inventory shall be placed in the evidence locker. Such record shall become a part of the case file. When custody of the vehicle changes from one person to another, the person taking custody of the vehicle shall also assume custody of the contents by placing his/her signature on the inventory list.

These procedures are silent as to how soon after a vehicle is impounded the inventory must be completed, and whether bifurcated searches are permitted.

The fourth amendment requires a sufficient proximity in time between the impoundment of a vehicle and the subsequent inventory search. Ex Parte Boyd, 542 So.2d 1276, 1279, cert. denied, 493 U.S. 883, 110 S.Ct. 219, 107 L.Ed.2d 172 (1989). Each moment, hour or day that passes detracts from a full effectuation of the objectives of the inventory, namely to protect property. Id. ³

In the present case, there was a time lapse of at least one day between the impounding of defendant's vehicle and the time the inventory was completed. However, the inventory was initiated immediately after the accident. It was completed at a later time because, as Draper testified, the remoteness of the area required him to prioritize his duties, and that meant removing victims for medical care, getting defendant's blood drawn, arresting and transporting defendant, and completing the preliminary investigation of the accident.

We agree with defendant that a bifurcated inventory search, such as was conducted here, is not specifically provided for in the applicable procedures. That fact alone, however, does not make the inventory search illegal. Where there is an initial search performed contemporaneously with the impounding of a vehicle, and a second search conducted after the vehicle has been impounded, both parts of the search are legally justified. Cf. Florida v. Meyers, 466 U.S. 380, 104 S.Ct. 1852, 80 L.Ed.2d 381 (1984) (upholding a second search conducted after vehicle was impounded); Michigan v. Thomas, 458...