United States v. Lawson

• Decision Date: 14 November 1973
• Docket Number: No. 73-1161.,73-1161.
• Citation: 487 F.2d 468
• Parties: UNITED STATES of America, Appellant, v. Sam Meredith LAWSON, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

487 F.2d 468 (1973)

UNITED STATES of America, Appellant, v. Sam Meredith LAWSON, Appellee.

No. 73-1161.

United States Court of Appeals, Eighth Circuit.

Submitted September 14, 1973.

Decided November 14, 1973.

David Gienapp, Asst. U. S. Atty., Sioux Falls, S. D., for appellant.

R. Murray Ogborn, Aberdeen, S. D., for appellee.

Before GIBSON and BRIGHT, Circuit Judges, and SMITH,^* Senior District Judge.

GIBSON, Circuit Judge.

The Government appeals, pursuant to 18 U.S.C. § 3731, from an order of the District Court, entered after a hearing,¹ granting the defendant's motion to suppress all evidence obtained as a result of an inventory search of an automobile. This is a case of first impression in this Circuit, presenting the question of the validity of an inventory search of an impounded vehicle.

The defendant, Sam Lawson, and a traveling companion, Lelia Fawcett, were arrested January 18, 1972, by local police officers in Aberdeen, South Dakota, on separate charges of passing insufficient funds checks. They had traveled to Aberdeen in Mrs. Fawcett's 1969 Ford, which bore Maryland license plates. At the time of their arrest, the car was parked in the Holiday Inn Motel parking lot in Aberdeen with its doors and trunk locked. It was impounded and taken to the police station. The next day, January 19th, pursuant to a written regulation of the Aberdeen Police Department,² the car was completely searched for the purpose of preparing an inventory of the contents and placing any "valuables" in storage. During the course of this inventory, a .22 caliber revolver was found in the locked trunk of the car, which led to the filing of the two count federal indictment in this case. Count I charged the defendant with unlawfully transporting a stolen firearm in interstate commerce in violation of 18 U.S.C. § 922(i), and count II charged that defendant, a convicted felon, had transported a firearm from West Virginia to Aberdeen, South Dakota, in violation of 18 U.S.C. § 922(g).

There is no assertion that the search in this case can be justified upon any ground other than as an inventory search. The Government specifically disavows any contention that the search was incident to a lawful arrest, and it is equally clear from the record that there existed no probable cause to support a search of the locked trunk. Rather, the Government argues that the search and seizure should be upheld because, "the discovery of the firearm was made while the Police Officers were following a legitimate, reasonable and necessary police function." The Government argues that when the inventory is carried out pursuant to a standard uniform procedure, it is reasonable; thus the evidence seized should be admissible. This position finds support in the language of some of the cases that have considered the problem of an inventory search.³ However, the contrary position, that an inventory search is unreasonable, has been taken by other courts.⁴

The problem of automobile searches and their relationship to the warrant requirements of the Fourth Amendment has been a perplexing one for the courts. Without the assistance of definitive guidelines (indeed guidelines attempting to apply the general requirements of the Fourth Amendment in this area are likely to be of little assistance in the varying factual circumstances presented by concrete cases), the courts have attempted to apply general Fourth Amendment principles, assisted by what applicable language they could discern from the Supreme Court cases, to resolve situations probably never contemplated by the drafters of the Fourth Amendment or the courts. Lower courts have been hampered in this process by a seeming lack of consistency in the Supreme Court cases dealing with automobile searches, the inconsistencies no doubt being due to the manifold considerations that bear with unequal weight on varying aspects of the problem. This was recognized by Justice Rehnquist, writing for the majority in Cady v. Dombrowski, 413 U.S. 433, 439, 93 S.Ct. 2523, 2527, 37 L.Ed.2d 706 (1973):

While these general principles are easily stated, the decisions of this Court, dealing with the constitutionality of warrantless searches, especially when those searches are of vehicles, suggest that this branch of the law is something less than a seamless web.

The Supreme Court has not decided whether an inventory search, without a warrant or justified by a recognized exception to the warrant requirement, would be considered reasonable under the Fourth Amendment. Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067 (1968) explicitly stated that the "admissibility of evidence found as a result of a search under the police regulation is not presented by this case."

The Supreme Court decision most nearly in point is Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), where the Court invalidated a search, made by state officers, after the defendant's arrest on a charge of vagrancy. The car had been towed to a garage and after booking the defendant, the car was searched and items seized which were sought to be introduced as evidence in a federal trial for conspiracy to rob a federally-insured bank. A unanimous Court held that the search and seizure without a warrant did not meet the test of reasonableness under the Fourth Amendment. Subsequent cases have indicated that Preston should be narrowly read to indicate only that the search involved there could not be justified as incident to a lawful arrest, not that it would be unreasonable in all circumstances.⁵ Preston does, however, seem to establish a requirement that the arrest and a subsequent search be reasonably related. As noted by Mr. Justice Black in Cooper v. California, 386 U.S. 58, 61, 87 S.Ct. 788, 791, 17 L.Ed.2d 730 (1967):

Preston was arrested for vagrancy. An arresting officer took his car to the station rather than just leaving it on the street. It was not suggested that this was done other than for Preston\'s convenience or that the police had any right to impound the car and keep it from Preston or whomever he might send for it. The fact that the police had custody of Preston\'s car was totally unrelated to the vagrancy charge for which they arrested him. So was their subsequent search of the car.

See also Williams v. United States, 412 F.2d 729, 732 (5th Cir. 1969).

Our instant case is quite similar to Preston. Here Lawson was arrested on a bad check charge. The officers took his car to the station, rather than leaving it parked at the Holiday Inn parking lot. There is no suggestion that the police had the right to impound the car. However, in view of the holding that Preston stands only for the proposition that the search there could not be justified as incident to a lawful arrest, Cady v. Dombrowski, supra at 446 of 413, 93 S.Ct. 2523, we must look further and see whether the fact that the search and seizure here was done as a "legitimate police function" establishes its reasonableness under the Fourth Amendment.

The Government argues that Cady supports the use of inventory procedures. Cady approved a search for a revolver upon a showing that it was that department's standard procedure; it is argued that we should approve the inventory in this case because it is the Aberdeen Police Department's standard procedure to inventory impounded automobiles. This argument ignores the Court's emphasis on the factual considerations present in Cady and absent here. First, the vehicle in Cady was disabled as the result of an accident and constituted a nuisance along the highway. The driver, being intoxicated and later comatose, could not have made arrangements to have the car towed and stored. Second, the police made a search for the revolver as a standard procedure to protect the public from the possibility that a revolver might fall into untrained or malicious hands. The motorist in Cady was a Chicago policeman. The police of Kewaskum, Wisconsin, believed he was required by regulation to carry his service revolver at all times. They therefore had reason to believe that the automobile contained the revolver when it was not found on his person. In the instant case, the vehicle was not disabled, nor was it in a position where it could be considered a public nuisance. There is no indication that Lawson, or Mrs. Fawcett, could not have made arrangements for the safekeeping of the vehicle during the time they were in custody. Secondly, there was no reason for the Aberdeen police to believe that the car contained anything that might threaten the safety of the public.

The Government relies also on Harris and Cooper to support their argument. In Harris, evidence in plain view of a police officer, who was taking reasonable steps for the protection of the car, was held admissible. This irrefragably permissible police conduct certainly cannot be equated with breaking into a locked trunk, even though both actions are said to be taken for the protection of the owner's property. Cooper also is a different case than what we have here. The automobile in Cooper was seized pursuant to statute specifying forfeiture of the car for its unlawful use. There was a close relationship between the reason for the arrest and the search, as well as the reason the vehicle was in custody. See, United States v. Young, 456 F.2d 872, 875 (8th Cir. 1972). None of these considerations are applicable here. Therefore the decision in this case must depend upon an analysis of the "reasonableness" of the search here in question.

We note first that several state courts have concluded that an inventory examination is not a search. People v. Sullivan, 29 N.Y.2d 69, 323 N.Y.S.2d 945, 272 N.E.2d 464 (1971); State v. Wallen, 185 Neb. 44, 173 N.W.2d 372, cert. denied, 399 U.S. 912, 90 S.Ct. 2211, 26 L.Ed.2d 568 (1970). Sullivan places reliance upon a draft of the Model Code of Pre-Arraignment Procedure of the American Law Institute, which defines a "search" as an...