Colyer v. State , 9 Ark. App. 1 ( 1983 )

Tom Glaze, Judge,

dissenting. This case involves the inventory search of appellant’s vehicle. As the result of the search, appellant was charged with and convicted of the possession of a firearm by a convicted felon and possession of a controlled substance with intent to deliver. Appellant contends that the arresting officers’ impoundment and search of his station wagon violated (1) Rule 12.6 (b) of the Arkansas Rules of Criminal Procedure and (2) his rights that are secured by the State and federal constitutions to be free from unreasonable search and seizure.

The relevant facts are undisputed. On February 28, 1981, two police officers, Hughes and Lovett, were summoned to assist with a vehicle which was stuck in mid. The officers found the appellant attempting to dislodge his car. Appellant asked the officers if they could push him out of the mud with their patrol car. The officers said that they could not; they offered to call a wrecker. Appellant agreed. Officer Lovett noticed there were no tags on the car. Appellant explained that he had j ust bought the car and had purchased temporary tags. The officers ran an identification check on appellant’s driver’s license when they called for a wrecker. They learned there were outstanding warrants for appellant’s arrest from Madison County and the City of Rogers. The officers did not know the nature of the charges for which the warrants had been issued.

When the wrecker arrived at the scene, the officers placed appellant under arrest for drinking on the highway. Officer Hughes testified that he had smelled alcohol and had determined that appellant was inebriated. Officer Lovett took appellant to the Carroll County jail, and Hughes stayed with the vehicle until the wrecker pulled it out of the mud. Hughes asked the wrecker driver to take the vehicle to the parking lot of the Carroll County jail before moving it to the storage yard. Both Lovett and Hughes then inventoried the car in accordance with what they stated was departmental policy.

In their search, they found three affidavits of citizenship, two in the right front floorboard and one in the glovebox. The affidavits were made out in different names but each had appellant’s picture on it. Cassette tapes, whiskey and beer were also discovered. Officer Hughes testified that he crawled up on the back seat on his knees to look over behind the seat when the seat gave way, permitting him to see a paper bag with a plastic sack inside it. He pulled out the plastic sack and discovered it contained thirteen smaller bags of a green, vegetable material. He then checked the spare wheel compartment inside the station wagon and found a .22 long semi-automatic rifle which was loaded.

At trial, the appellant unsuccessfully attempted to suppress the contraband found in the inventory search. The State’s position throughout the suppression hearing was that the vehicle was impounded to protect the owner’s property and to protect the police and wrecker service from claims for stolen property. In overruling appellant’s motion to suppress, the tiial court relied on South Dakota v. Opperman, 428 U.S. 364 (1976), and Lipovich v. State, 265 Ark. 55, 576 S.W.2d 720 (1979). In Opperman, the court upheld an inventory search of a car which had been impounded for multiple parking violations, when the car’s owner was not present to make other arrangements for the safekeeping of his belongings. In Lipovich, the court upheld a warrantless search of an abandoned U-Haul rental truck which was causing a traffic hazard on the highway and which the owner advised police was stolen. The Arkansas Supreme Court affirmed the trial court’s denial of the defendant’s motion to suppress certain contraband contained in the truck and held that there was no violation of Rule 12.6 (b) or any infringement of constitutional rights.

Unlike the facts at bar, both Opperman and Lipovich involved sitautions in which the lawful impoundment of the cars took place when the car owners were not present. Here, the appellant was present, and the impoundment and search of his station wagon was conducted pursuant to Rule 12.6 (b), which provides:

(b) A vehicle impounded in consequence of an arrest, or retained in official custody for other good cause, may be searched at such times and to such extent as is reasonably necessary for safekeeping the vehicle and its contents.

Rule 12.6 (b) has been construed by our Supreme Court on only two occasions, in Lipovich, supra, and in the earlier case of Goodwin v. State, 263 Ark. 856, 568 S.W.2d 3 (1978). In Goodwin, the Supreme Court ruled a Rule 12.6 (b) search illegal when there was no evidence that the seized truck had been used to transport controlled substances. The court held the inventory search could not be sustained because no basis for the seizure was established.

The threshhold issue to be decided is whether the police lawfully impounded appellant’s car. If so, the legality or permissibility of the scope of the search becomes moot. In arguing that the impoundment was illegal, appellant relies on the case of Miller v. State, 403 So. 2d 1307 (Fla. 1981). In Miller, the arresting officers stopped the defendant after he drove through a red light. He gave the officers another person’s driver’s license receipt, and he was subsequently arrested for obstruction of justice. The officers later inventoried defendant’s car and found a controlled substance. At trial, the defendant moved to suppress because the officers had searched without a warrant and because they had failed to tell the defendant that they were going to impound his vehicle. The trial court granted defendant’s motion, and the Florida Supreme Court sustained that ruling, stating:

What we hold is that an officer, when arresting a present owner or possessor of a motor vehicle, must advise him or her that the vehicle will be impounded unless the owner or possessor can provide a reasonable alternative to impoundment. An inventory search of a motor vehicle without such advice or consultation to a present owner or possessor upon arrest results in an unreasonable search under the United States and Florida constitutions and must be excluded under the Florida constitutional exclusionary rule.

Id. at 1314.

The Court in Miller cited, among others, the case of State v. Slockbower, 79 N.J. 1, 397 A.2d 1050 (1979). The court in Slockbower recognized that since Opperman was decided, a substantial and growing minority of jurisdictions have insisted upon a factual showing of substantial police need, in the light of the constitutional regard for the privacy interests of automobile drivers, before approving the im-poundment of a motor vehicle. In Slockbower, the defendant was arrested by Jersey City police officers for driving a motor vehicle while on the revoked list. The car was searched at once, and a .22 caliber pen gun and a box of ammunition were found in the closed but unlocked glove compartment.

The New Jersey Supreme Court held that the police’s impoundment of defendant’s car was illegal and in doing so, stated:

It has been persuasively stated in a number of cases, in seeking a rationale that would duly balance the right of privacy against legitimate police safekeeping functions, that if the circumstances, that bring a vehicle properly to the attention of the police are such that its driver, even though arrested, is able to make his own arrangements for its custody, or if the vehicle can be conveniently parked and locked without constituting an obstruction of traffic or other public danger, the police should permit that action to be taken rather than impound it against the will of the driver and thereafter search it routinely.

Id. at 1053-54.

Until now, our State appellate courts have not been confronted with an inventory search issue like that posed in Miller and Slockbower. However, the United States Court of Appeals, Eighth Circuit, has considered such an issue in United States v. Wilson, 636 F.2d 1161 (8th Cir. 1980). In Wilson, the defendant’s car was stopped, and he was placed under arrest for various traffic infractions. The officer decided to take the defendant, a nonresident, to the police station so that he could post an appearance bond. The officer testified he believed the defendant was incapable of driving, so the officer ordered a tow truck to remove defendant’s car. Before the car was towed, the officer helped conduct a routine inventory search of the interior and trunk of the car. The officers found a sock containing shotgun shells under the front seat and two pistols, a sawed-off shotgun, two nylon stocking masks, two pairs of overalls, three pairs of work gloves and one pair of bolt cutters in the trunk. The trial court admitted these items into evidence, but the Court of Appeals held the search illegal, stating:

The particular facts of this case make the search of Wilson’s automobile trunk especially unreasonable. In Opperman, the Court noted that the car’s owner “was not present to make other arrangements for the safekeeping of his belongings” and that the “inventory itself was prompted by the presence in plain view of a number of valuables inside the car.” United States v. Opperman, supra, 428 U.S. at 375-76, 96 S. Ct. at 3100. Here, by contrast, the police offered no special justification for the search and Wilson was present during the search and capable of making other arrangements to safeguard his property. The police could have protected their interests as well as Wilson’s without intruding into the privacy of the automobile trunk. The police, for example, could have asked for Wilson’s consent to search the car, or, in the alternative, requested that Wilson arrange to remove the car himself or to relieve police from liability or claims. In addition, the police could have inventoried the locked trunk as a single unit. As this court has suggested in an analogous context, unit inventories might better serve the interests of the Government by minimizing “the possibility of loss and the possibility of false claims against police by the owner.” United States v. Bloomfield, supra, 584 F.2d at 1202. As long as the police could show the trunk was never open while in their custody, the owner would have no claim involving property in the trunk. Finally, this search was unnecessary because the police intended to retain control of Wilson’s vehicle for only a short period of time until Wilson could post an appearance bond.

The facts here are similar to those in Wilson. Appellant, a nonresident, was arrested on a charge which had nothing to do with whether there may have been contraband in his vehicle. In sum, the police had no reason to suspect that contraband was in the car and, therefore, no reason to conduct an investigatory search. The officer in Wilson did not believe the defendant should drive his vehicle, so the officer called a towing service. Here, the officers claimed appellant was inebriated; however, this observation was not made until after they had asked appellant if he wanted them to call a wrecker to extract his car from the mud. At trial, one of the officers testified that they later decided not to charge appellant with drinking because at the time the police department’s breathalyzer was “broke down.” Regardless of what happened to the initial charge against appellant, the evidence is clear that, before his arrest, appellant intelligently discussed with the officers alternate ways to remove his car and also communicated why he had no tags on the vehicle. He requested that the officers call a wrecker, which had arrived at the time appellant was arrested. Because appellant directed that a wrecker be called, if he had been given the opportunity, he may well have arranged for his car to be towed before he was taken to jail. In the alternative, the officers could have asked appellant to consent to their searching the car or to relieve them from liability for any claims.

Under the particular facts here, I am convinced that appellant’s car was impounded unlawfully. I am not unmindful of the State’s contention that certain items in plain view dictated an inventory search. Although it argues that cassettes, beer and whiskey were discovered in plain view inside the car, there is nothing in the record which supports that conclusion. The evidence shows only that these items were in the car — the number of items and their location were not mentioned. Even if the officers saw valuables in the car, they had no excuse to impound and search the entire vehicle when the appellant was present and able to decide what to do with his car. Because the car’s impoundment was unlawful, the officers’ subsequent inventory search was necessarily illegal.

To avoid any misunderstanding, I reiterate that this is not a case in which there was any probable cause to search or in which the search was related to the arrest. Nor does this case involve the lawful seizure of items under the plain view doctrine as that doctrine is defined in Enzor v. State, 262 Ark. 545, 559 S.W.2d 148 (1977).

I also wish to make it clear that I would not adopt the rule in Miller v. State, supra, which I read to mean that in every case an officer, when arresting a present owner or possessor of a vehicle, must advise him or her that the vehicle will be impounded unless the owner or possessor can provide a reasonable alternative. However, I do believe that when no special justification exists for a search and the vehicle owner is capable of making other arrangements to safeguard his property, as in the instant case and in United States v. Wilson, supra, the owner must be consulted before an inventory search, either to gain his consent to the search or to afford him an opportunity to provide an alternative to the vehicle’s impoundment.¹

In conclusion, I find significance in the fact that the majority gives only lip service to the Wilson case, stating summarily that the circumstances there differ from those at bar. As noted earlier, the officers did say that the appellant was intoxicated, but there is no other evidence to support such an allegation. To the contrary, the appellant intelligently conversed with officers concerning his predicament, and the officers never found it necessary to charge him with an intoxication violation. Inventory searches can easily be used as an insidious device to avoid the necessity of showing probable cause, and the indiscriminate use of such searches should not be countenanced by our courts. I believe this Court is doing just that in affirming this case. I would reverse and remand for a new trial.

1 For other citations to this effect, see 7 Search & Seizure L. Rep. 42 (July, 1980).