State v. Miller , 423 S.C. 95 ( 2018 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
v.
Jonathan Xavier Miller, Petitioner.
Appellate Case No. 2016-000862
ON WRIT OF CERTIOARI TO THE COURT OF
APPEALS
Appeal from Richland County
Doyet A. Early III, Trial Court Judge
Opinion No. 27798
Heard April 12, 2017 – Filed May 9, 2018
AFFIRMED
Deputy Chief Appellate Defender Wanda H. Carter, of
Columbia, for Petitioner.
Attorney General Alan Wilson, Senior Assistant Deputy
Attorney General J. Benjamin Aplin, Solicitor Daniel E.
Johnson, of Columbia, and Brent H. Arant, of North
Charleston, all for Respondent.
JUSTICE FEW: Jonathan Xavier Miller appeals his conviction for possession of
crack cocaine. He argues the trial court erred in denying his motion to suppress drug
evidence seized during an inventory search of his vehicle after he was arrested for
driving with a suspended license. We find the trial court correctly denied the motion,
and affirm.
I. Facts and Procedural History
In January 2013, Columbia Police Department Officers James Westbury and Shaun
McDonald were in the Rosewood area of Columbia investigating criminal activity
unrelated to this case. During their investigation, a resident of the area informed the
officers that an older-model, silver and green Chevrolet with large rims had been
making frequent stops at a location known for drug activity.
Later that day, Officer Westbury and Officer McDonald—driving separately—
observed a vehicle fitting that description pull into a gas station parking lot. Both
officers turned their vehicles around and followed the silver and green Chevrolet as
it left the gas station and traveled along several streets. The officers did not activate
their blue lights or sirens. The Chevrolet came to a stop in the private driveway of
an apartment complex, so the officers parked on the street and exited their vehicles.
After Miller got out of the driver's seat, the officers approached him to ask for
identification. Miller told the officers he did not have his driver's license with him,
but gave them his name and date of birth. When the officers provided Miller's
information to the Department of Motor Vehicles, they discovered his license was
suspended, so they arrested Miller for driving with a suspended license in violation
of section 56-1-460 of the South Carolina Code (2018). The officers searched Miller
incident to his arrest and found an electronic scale in one of his pockets. They asked
for consent to search the Chevrolet, but Miller refused.
While the officers were arresting Miller, his girlfriend—Nikea Berry—came out of
one of the apartments. She told the officers she lived there, and Miller was visiting
her. The officers also learned the owner of the Chevrolet was Cassandra Jones, who
did not live at the apartment complex and was not present at the scene.
Columbia Police Department's standard procedures permit its officers to tow
vehicles when the driver is arrested away from his residence and there is no
responsible party present at the scene. The Department's written policy requires
police officers to conduct an inventory search of the passenger compartment of a
towed vehicle. Because Miller was arrested away from his residence, and because
Jones was not present at the scene, the officers called a towing company to tow the
Chevrolet. Before the tow truck arrived, the officers conducted an inventory search
and found just under five grams of crack cocaine beneath the driver's seat.
A grand jury indicted Miller for possession with intent to distribute crack cocaine.
Prior to his trial, Miller moved to suppress the drug evidence arguing the officers
did not have authority to tow the Chevrolet from the private driveway, they were not
authorized to conduct the inventory search, and thus the seizure of the drugs violated
the Fourth Amendment. The trial court denied the motion to suppress.
At trial, the jury found Miller not guilty of possession with intent to distribute, but
convicted him of simple possession of crack cocaine, which was his third offense.
The trial court sentenced Miller to nine years in prison. See S.C. Code Ann. § 44-
53-375(A) (2018) ("For a third or subsequent offense [of possession of cocaine
base], the offender is guilty of a felony and, upon conviction, must be imprisoned
not more than ten years . . . ."). Miller appealed to the court of appeals, which
affirmed his conviction in an unpublished opinion. State v. Miller, Op. No. 2016-
UP-040 (S.C. Ct. App. filed Jan. 20, 2016). Miller filed a petition for a writ of
certiorari, which we granted.
II. Analysis
The issue on appeal is whether it was reasonable under the Fourth Amendment for
the officers—acting pursuant to their department policy—to seize, search, and then
tow the vehicle Miller was driving when he was arrested on private property away
from his residence and the owner of the vehicle was not present. The facts relevant
to this appeal are not in dispute, so we address the issue as a question of law, which
we review de novo. See State v. Adams, 409 S.C. 641, 647, 763 S.E.2d 341, 344
(2014) (stating "this Court reviews questions of law de novo").
A. The Fourth Amendment and Inventory Searches
The Fourth Amendment protects the "right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures." U.S.
CONST. amend. IV. "The ultimate standard set forth in the Fourth Amendment is
reasonableness." Cady v. Dombrowski, 413 U.S. 433, 439, 93 S. Ct. 2523, 2527, 37
L. Ed. 2d 706, 713 (1973). "Whether a search and seizure is unreasonable within
the meaning of the Fourth Amendment depends upon the facts and circumstances of
each case." S. Dakota v. Opperman, 428 U.S. 364, 375, 96 S. Ct. 3092, 3100, 49 L.
Ed. 2d 1000, 1009 (1976). In most circumstances, evidence seized in violation of
the Fourth Amendment's reasonableness standard must be excluded from trial. State
v. Weaver, 374 S.C. 313, 319, 649 S.E.2d 479, 482 (2007).
"Generally, a warrantless search is per se unreasonable and violates the Fourth
Amendment prohibition against unreasonable searches and seizures." Id. However,
a warrantless search can be reasonable if it falls under one of the exceptions to the
warrant requirement. Id. One of those exceptions is an inventory search conducted
according to standard police procedures. Robinson v. State, 407 S.C. 169, 185, 754
S.E.2d 862, 870 (2014) (stating "if police officers are following their standard
procedures, they may inventory impounded property without obtaining a warrant"
(citing Colorado v. Bertine, 479 U.S. 367, 374, 107 S. Ct. 738, 742, 93 L. Ed. 2d
739, 747 (1987))).
"For an inventory search to be valid, the vehicle searched should first be in the valid
custody of the law enforcement officers conducting the inventory." United States v.
Brown, 787 F.2d 929, 931-32 (4th Cir. 1986) (citing Opperman, 428 U.S. at 374, 96
S. Ct. at 3099, 49 L. Ed. 2d at 1008). "The question . . . is . . . whether the police
officer's decision to impound was reasonable under the circumstances." Brown, 787
F.2d at 932; see also United States v. Bullette, 854 F.3d 261, 265 (4th Cir. 2017)
("An inventory search of an automobile is lawful (1) where the circumstances
reasonably justified seizure or impoundment, and (2) law enforcement conducts the
inventory search according to routine and standard procedures designed to secure
the vehicle or its contents.") (citing Bertine, 479 U.S. at 371-76, 107 S. Ct. at 741-
43, 93 L. Ed. 2d. at 745-48).
B. Reasonableness of the Impoundment
The first step in our analysis is to determine whether Officers Westbury and
McDonald's decision to seize Miller's vehicle violated the Fourth Amendment. We
find the decision was reasonable under the circumstances, and thus there was no
violation.
We begin our explanation with the fact the officers seized and towed the vehicle
pursuant to lawful authority. They acted in accordance with the requirements set
forth in a written police department policy, which was adopted pursuant to a City of
Columbia ordinance, which was passed under authority of a state statute, which the
General Assembly enacted pursuant to the Home Rule provisions of the Constitution
of South Carolina.
Article VIII, section 9 of our Constitution provides, "The structure and organization,
powers, duties, functions, and responsibilities of the municipalities shall be
established by general law," and article VIII, section 17 provides, "The provisions
of this Constitution and all laws concerning local government shall be liberally
construed in their favor. Powers, duties, and responsibilities granted local
government subdivisions by this Constitution and by law shall include those fairly
implied and not prohibited by this Constitution." Pursuant to the authority granted
it in article VIII, section 9, our General Assembly enacted section 5-7-30 of the
South Carolina Code (Supp. 2017), which provides,
Each municipality of the State . . . may enact regulations,
resolutions, and ordinances, not inconsistent with the
Constitution and general law of this State, including the
exercise of powers in relation to roads, . . . law
enforcement, . . . and order in the municipality or
respecting any subject which appears to it necessary and
proper for the security, general welfare, and convenience
of the municipality or for preserving . . . peace, order, and
good government in it . . . .
Pursuant to section 5-7-30, the City of Columbia enacted section 10-31 of its Code
of Ordinances granting the chief of police broad powers over law enforcement in the
City. Section 10-31 provides,
The chief of police, subject to the city manager, shall have
administrative supervision over the police department. He
shall be responsible for the enforcement of state laws and
city ordinances, . . . establish training programs, . . . [and]
establish departmental rules and regulations . . . .
In turn, the chief of the Columbia Police Department adopted the Columbia Police
Department's Policy Manual, which provides in section 7.2 of the Auxiliary Traffic
Services chapter,
Departmental personnel may also tow the following
vehicles:
 Any vehicle from which an officer makes an arrest and
there is no responsible party to whom the arrestee can
turn over the possession of the vehicle.
During a hearing on the motion to suppress, the State presented the testimony of the
arresting officers to further explain the department policy and their decision to seize
and tow the vehicle. Officer McDonald testified, "The vehicle needs to be towed
. . . to make sure that nothing happens to the vehicle to cover our end." The trial
court asked Officer McDonald, "What authority did you . . . rely upon in removing
[the Chevrolet] from the private driveway?" McDonald replied, "Like I said, sir, to
my knowledge, it wasn't his residence, and I was trained from day one that if the
person gets arrested and it's not their residence that the vehicle gets towed." The
solicitor asked Officer Westbury, "When discerning the responsible party to . . .
possibly leave the car with, what factors do you look at?" Westbury replied, "It's . . .
going to come up to the actual vehicle owner where the vehicle owner is on the scene
or whether it's something to where I'm given information as far as where they want
it left." When the trial court asked Officer Westbury why the Chevrolet was towed,
he said, "Due to the fact that he wasn't the vehicle owner, and the owner wasn't on
the scene." Officer Westbury also testified, "It's per the policy."
We read the towing provision of the policy to include three requirements that must
be met before the vehicle may be towed: (1) the officer makes the arrest from the
vehicle, (2) the arrest occurs away from the arrestee's residence, and (3) the owner
is not present at the scene and no other person is present who is authorized to take
responsibility for the vehicle. Because all three of these requirements were met in
this case, we find the officers complied with the governing policy, and the seizure
was reasonable under the Fourth Amendment.
Our decision is consistent with other decisions addressing the legality of police
seizure of a vehicle on private property. In Brown, for example, a police officer
pulled the defendant's vehicle after observing the vehicle "weaving down the
highway." 787 F.2d at 930. Brown pulled into a private parking lot used by several
nearby businesses and apartments. Id. The police officer determined Brown was
intoxicated, and arrested him for driving under the influence of alcohol. Id. The
police officer impounded the car, and then conducted an inventory search during
which he found an unregistered firearm with an illegal silencer. 787 F.2d at 931.
The district court denied Brown's motion to suppress the evidence seized as a result
of the inventory search. Id.The facts of Brown are similar to this case in several important respects. First, both
arrests were made from the vehicle after the officer observed the suspect driving in
a manner the officer later determined to be illegal—driving with a suspended license
in this case, and driving under the influence in Brown. Second, both arrests were
made away from the suspect's residence, in a private parking lot. The facts of Brown
are also similar to this case in that Brown's "girlfriend lived in an apartment over one
of the businesses adjoining the parking lot," and there were no other passengers in
the car who could drive it.1 Id. The facts of Brown are dissimilar in that Brown
owned his vehicle, and thus could give permission to the officer to leave it there,
and—more importantly—the officer in Brown did not base his decision to tow
Brown's vehicle on any police procedure that set forth standardized criteria
governing when to tow a vehicle.2 These dissimilarities make Brown a weaker case
for a reasonable seizure under the Fourth Amendment than this case. Nevertheless,
the Fourth Circuit found the officer's decision to seize and tow the vehicle was
reasonable, stating,
we are of opinion that the police officer in this case could
reasonably have impounded Brown's vehicle either
because there was no known individual immediately
available to take custody of the car, or because the car
could have constituted a nuisance in the area in which it
was parked. Therefore, we are of opinion that the police
were in lawful custody of Brown's car at the time of their
inventory of its contents.
787 F.2d at 932-33 (citation omitted). Rejecting Brown's argument that the officers
could have left the car with Brown's girlfriend, the Fourth Circuit stated, "The police
could have done so. That they did not, however, does not render their impoundment
of Brown's car unreasonable." 787 F.2d at 932 (citing Illinois v. Lafayette, 462 U.S.
640, 647, 103 S. Ct. 2605, 2610, 77 L. Ed. 2d 65, 72 (1983)).
Turning our attention back to this case, the limitations imposed on an officer's
discretion to seize and tow a vehicle by the three requirements of section 7.2 of the
Auxiliary Traffic Services chapter of the Columbia Police Department's Policy
1
There were three passengers in Brown's vehicle, but the court noted "everyone in
Brown's car had been drinking." Id.2
Although the Fourth Circuit stated the police had an "official policy for the
inventory of impounded vehicles," 787 F.2d at 931 n.2, there is no reference to any
policy governing the impoundment itself.
Manual are precisely the sort of "standardized criteria" courts have consistently
looked to in determining whether the seizure and towing of a vehicle is reasonable
under the Fourth Amendment. See Bertine, 479 U.S. at 376, 107 S. Ct. at 743, 93 L.
Ed. 2d at 748 (recognizing the validity of police discretion to impound a vehicle "so
long as that discretion is exercised according to standard criteria and on the basis of
something other than suspicion of evidence of criminal activity"); Florida v. Wells,
495 U.S. 1, 4, 110 S. Ct. 1632, 1635, 109 L. Ed. 2d 1, 6 (1990) (explaining that the
requirement of standardized criteria "is based on the principle that an inventory
search must not be a ruse for a general rummaging in order to discover incriminating
evidence").
In United States v. Sanders, 796 F.3d 1241 (10th Cir. 2015), for example, the Tenth
Circuit explained the necessity "that standardized criteria generally must confine
officer discretion to impound vehicles" before a seizure may be found reasonable
under the Fourth Amendment. 796 F.3d at 1247. The Sanders court affirmed the
suppression of evidence seized from an impounded vehicle in part because the
applicable municipal code did not authorize "impoundment from private lots," even
though it "explicitly authorizes the impoundment of vehicles from public property."
796 F.3d at 1250.
In State v. Pogue, 868 N.W.2d 522 (N.D. 2015), a case relied on by the dissent, the
Supreme Court of North Dakota stated,
The impounding of a vehicle passes constitutional muster
so long as the decision to impound is guided by a standard
policy—even a policy that provides officers with
discretion as to the proper course of action to take—and
the decision is made "on the basis of something other than
suspicion of evidence of criminal activity."
868 N.W.2d at 528 (quoting United States v. Le, 474 F.3d 511, 514 (8th Cir. 2007),
which quoted Bertine, 479 U.S. at 375, 107 S. Ct. at 743, 93 L.Ed.2d at 748). The
Pogue court found the impoundment of the vehicle in that case violated the Fourth
Amendment as an unreasonable seizure because there were no limitations on the
officer's discretion to seize and tow the vehicle, and "the State has failed to meet its
burden of establishing the reasons for impounding a vehicle were anything other
than for an investigative function." 868 N.W.2d at 531. The court specifically noted,
"The State offered no evidence on when officers are authorized to impound a
vehicle." 868 N.W.2d at 530.
In this case, by contrast to Sanders and Pogue, the City of Columbia policy
specifically limits an officer's discretion to seize and tow a vehicle to situations in
which the three requirements discussed above are met. These three requirements
place appropriate limits on police discretion to tow a vehicle, and the officers'
compliance with the requirements renders the decision to tow it reasonable under the
Fourth Amendment. See Le, 474 F.3d at 514-15 (holding the officer "acted
according to standard procedures when he decided to impound the SUV" and thus
"the decision to impound the SUV passes constitutional muster").
The dissent argues the towing provisions of section 7.2 of the policy do not
contemplate towing a vehicle from private property. The argument is based in part
on the fact that other sections of the policy specifically limit their application, and
do not apply on private property. For example, section 7.1 of the policy permits
officers to tow a vehicle only from a street or highway.3 However, the fact other
sections limit an officer's authority to tow to circumstances involving public
property, while section 7.2 does not, supports a finding that the towing provisions in
section 7.2 were intended to apply to vehicles on private property. See supra § 7.2
(stating "[d]epartment personnel may also tow . . ." (emphasis added)); see also
United States v. Marshall, 168 F. Supp. 3d 846, 855 (D.S.C. 2016) (finding section
7.2 of the of the Auxiliary Traffic Services chapter in the Columbia Police
3
Section 7.1 provides,
Members of the Department may tow a vehicle meeting
the following criteria:
 Any unattended vehicle outside a business or
residential area parked on a paved or main traveled part
of the highway . . . .
 Any vehicle left so as to prevent an unobstructed width
of highway . . . .
 Any vehicle left so that it cannot be seen clearly from
a distance of two hundred feet . . . .
 Any unattended vehicle illegally left standing upon any
highway, . . . or under such circumstances as to
obstruct the normal movement of traffic . . . .
 Any vehicle left unattended in a metered parking space
for a period of twenty-four hours . . . .
Department's Policy Manual permits officers to tow a vehicle from a private
driveway). If Officers Westbury and McDonald had towed Miller's vehicle pursuant
section 7.1 of the policy, the dissent would be correct because none of the section
7.1 criteria were met in this case. However, the officers towed Miller's vehicle
pursuant to section 7.2, which applies to vehicles on private property.
Miller argues sections 56-5-2520 and 56-5-5635 of the South Carolina Code (2018)
do not permit the police to tow vehicles from private property. We disagree with
Miller's argument for two reasons. First, it is not necessary that more than one state
law authorize the towing of a vehicle. As we have explained, state law authorized
the local ordinance and police department policy that permitted the officers to tow
Miller's vehicle.
Second, the important question regarding sections 56-5-2520 or 56-5-5635 is not
whether they grant the police authority to tow vehicles from private property.
Rather, the question regarding these sections is whether the Columbia Police
Department policy conflicts with these provisions of state law. See § 5-7-30
(providing regulations and ordinances must not be "inconsistent with the
Constitution and general law of this State"); see also City of N. Charleston v. Harper,
306 S.C. 153, 156, 410 S.E.2d 569, 571 (1991) (stating "the grant of power is given
to local governments with the proviso that the local law not conflict with state law"
(citing City of Charleston v. Jenkins, 243 S.C. 205, 208, 133 S.E.2d 242, 243
(1963))).
We find no conflict between the Columbia Police Department policy and these or
any other state statutes. Subsection 56-5-2520(c)(3) provides,
Any police officer may remove or cause to be removed to
the nearest garage or other place of safety any vehicle
found upon a highway when . . . [t]he person driving or in
control of the vehicle is arrested for an alleged offense for
which the officer is required by law to take such person
before a magistrate or other judicial official without
unnecessary delay.
While this subsection may not specifically authorize police officers to tow a vehicle
from private property, it does not prohibit police officers from doing so. See
Marshall, 168 F. Supp. 3d at 855 (finding section 56-5-2520 does not "exclude
private driveways").
Miller also relies on subsection 56-5-5635(A), which provides,
Notwithstanding another provision of law, a law
enforcement officer who directs that a vehicle be towed
for any reason, whether on public or private property, must
use the established towing procedure for his jurisdiction.
A request by a law enforcement officer resulting from a
law enforcement action including, but not limited to, a
vehicle collision, vehicle breakdown, or vehicle recovery
incident to an arrest, is considered a law enforcement
towing for purposes of recovering costs associated with
the towing and storage of the vehicle unless the request for
towing is made by a law enforcement officer at the direct
request of the owner or operator of the vehicle.
This subsection likewise does not prohibit police officers from towing a vehicle from
private property. In fact, this subsection contemplates that local law enforcement
agencies will adopt standard towing procedures, and explicitly provides that police
officers must use those established towing procedures when towing vehicles incident
to arrest from private property. That is exactly what Officers Westbury and
McDonald did in this case.
C. Reasonableness of the Inventory Search
Having determined it was reasonable for the officers to seize and tow Miller's
vehicle, we turn to the question of whether the inventory search the police officers
conducted in this case was reasonable under the Fourth Amendment.
In Opperman, the Supreme Court of the United States explained that inventory
searches serve "three distinct needs: the protection of the owner's property while it
remains in police custody; the protection [of] the police against claims or disputes
over lost or stolen property; and the protection of the police from potential danger."
428 U.S. at 369, 96 S. Ct. at 3097, 49 L. Ed. 2d at 1005. In Bertine, the Supreme
Court analyzed its jurisprudence on inventory searches in light of the facts of that
case and held, "We conclude that . . . reasonable police regulations relating to
inventory procedures administered in good faith satisfy the Fourth Amendment
. . . ." 479 U.S. at 374, 107 S. Ct. at 742, 93 L. Ed. 2d at 747. In United States v.
Matthews, 591 F.3d 230 (4th Cir. 2009), the Fourth Circuit stated, "For the inventory
search exception to apply, the search must have 'be[en] conducted according to
standardized criteria,' such as a uniform police department policy, and performed in
good faith." 591 F.3d at 235 (quoting Bertine, 479 U.S. at 374 n.6, 107 S. Ct. at 742
n.6, 93 L. Ed. 2d at 747 n.6, and then citing United States v. Banks, 482 F.3d 733,
739 (4th Cir. 2007)); see also Opperman, 428 U.S. at 372, 96 S. Ct. at 3098-99, 49
L. Ed. 2d at 1007 ("The decisions of this Court point unmistakably to the conclusion
reached by both federal and state courts that inventories pursuant to standard police
procedures are reasonable.").
Miller does not argue the officers acted in bad faith, so "our analysis focuses only
on whether the search was conducted pursuant to standardized criteria," Matthews,
591 F.3d at 235, and "pursuant to standard police procedures," Opperman, 428 U.S.
at 372, 96 S. Ct. at 3098-99, 49 L. Ed. 2d at 1007. We also must determine whether
the criteria set forth in the policy serve the "needs" an inventory search may
legitimately address as explained in Opperman. 428 U.S. at 369, 96 S. Ct. at 3097,
49 L. Ed. 2d at 1005.
Section 7.2 of the policy states,
Any officer towing a vehicle according to any provision in
Sections 7.1 or 7.2 will complete a "Record of Stored
Vehicle" . . . .
The officer shall ensure the security of all items of value
obtained in the passenger compartment of the vehicle. If
possible, the officer shall store all items of value in the
trunk of the vehicle. The vehicle's trunk key will be stored
in the Property Room under the owner's name. If the
vehicle does not have separate ignition and trunk keys, all
items of value shall be stored in the Property Room under
the owner's name. The officer should identify each item
and its storage location on the "Record of Stored Vehicle."
In Matthews, the Fourth Circuit stated, "The existence of . . . a [standardized criteria]
may be proven by reference to either written rules and regulations or testimony
regarding standard practices." 591 F.3d at 235 (quoting United States v. Thompson,
29 F.3d 62, 65 (2d Cir. 1994));4 see also United States v. Clarke, 842 F.3d 288, 294
(4th Cir. 2016) (same). During the suppression hearing, the officers testified they
conducted the inventory search pursuant to their training in accordance with the
written policy.
Based on the Policy Manual and the officers' testimony regarding the Department's
standard practices described above, we conclude the inventory search of the
Chevrolet was conducted pursuant to a valid standardized procedure. The policy
requires an inventory search to be conducted every time a vehicle is towed. This is
evident by the language of the policy: "The officer shall ensure the security of all
items of value obtained in the passenger compartment of the vehicle." The policy
also specifies how the inventory search should be conducted, including where to
search, where to store items of value, and how to make a record of what items of
value are found. Officer McDonald explained why it is standard procedure to
conduct an inventory search of vehicles that are towed, "Pretty much we inventory
vehicles to make sure that they can't say something was in the vehicle that wasn't so
we're not held responsible." When asked what he was looking for, he testified, "Just
valuables."
We find the Columbia Police Department policy as explained by the officers
contains the "standard police procedures" and "standardized criteria" that serve
legitimate needs as required by Opperman, Bertine, and Matthews. We have found
no evidence the officers did not follow the policy while conducting the inventory
search of the Chevrolet.5 Therefore the inventory search was reasonable under the
Fourth Amendment, and the trial court was correct to deny the motion to suppress.
4
Matthews substituted "standardized criteria" for the phrase "valid procedure" in
Thompson. Thompson used "such a valid procedure" to represent the language
"standardized criteria . . . or established routine," 29 F.3d at 65, which it quoted from
Wells, 495 U.S. at 4, 110 S. Ct. at 1635, 109 L. Ed. 2d at 6. Thompson quotes Wells
as part of its explanation of what is "a valid procedure" for an inventory search. 29
F.3d at 65-66.
5
During the suppression hearing, there was a brief exchange between Miller's
counsel and Officer McDonald in which Officer McDonald stated he did not
complete the written inventory list as required by the policy. During redirect,
however, Officer McDonald clarified that the inventory list requirement applies only
to items of value, and because no items of value were found, it was not necessary to
complete an inventory list.
III. Conclusion
For the reasons explained above, the trial court's decision to deny the motion to
suppress and Miller's conviction for possession of crack cocaine are AFFIRMED.
KITTREDGE, JAMES, JJ., and Acting Justice James E. Moore, concur.
BEATTY, C.J., dissenting in a separate opinion.
CHIEF JUSTICE BEATTY: I respectfully dissent as I believe the
circumstances did not reasonably justify the seizure, which precipitated the
inventory search. Initially, other than a citizen's "tip" about a vehicle making
frequent stops in a location known for drug activity, the officers offered no objective
justification for pursuing Miller's vehicle, asking for his information, and consent to
search the vehicle. Further, because the Columbia Police Department's policy did
not provide the requisite authority to seize Miller's vehicle from the private
driveway, the ultimate seizure was unlawful and, in turn, the resultant inventory
search violated the Fourth Amendment. Consequently, I would find the Court of
Appeals erred in affirming the trial judge's denial of Miller's motion to suppress.
The Fourth Amendment to the United States Constitution protects a person's
right to be free from unreasonable searches and seizures. U.S. Const. amend. IV.
"Warrantless searches and seizures are unreasonable absent a recognized exception
to the warrant requirement." State v. Brown, 401 S.C. 82, 89, 736 S.E.2d 263, 266
(2012) (citation omitted). The State bears the burden of establishing "the existence
of circumstances constituting an exception to the general prohibition against
warrantless searches and seizures." State v. Gamble, 405 S.C. 409, 416, 747 S.E.2d
784, 787 (2013).
The inventory search exception to the Fourth Amendment is well-established.
Robinson v. State, 407 S.C. 169, 754 S.E.2d 862 (2014) (recognizing that police
officers may conduct a warrantless inventory search, pursuant to their standard
procedures, after a vehicle is lawfully impounded (citing Colorado v. Bertine, 479
U.S. 367, 374 (1987))). However, prior to analyzing the reasonableness of an
inventory search, a threshold question must be answered. Specifically, the Court
must first determine whether the predicate seizure was lawful as the inventory search
is contingent on the seizure of the vehicle.
While our appellate courts have implicitly recognized that an inventory search
is dependent upon a lawful seizure,6 other jurisdictions have expressly identified this
prerequisite. See, e.g., People v. Spencer, 948 N.E.2d 196, 203 (Ill. App. Ct. 2011)
("The threshold question in determining whether the search of an individual's vehicle
qualifies as a valid inventory search is whether the prior impoundment was proper,
since the need and justification for the inventory arise from the impoundment.");
6
See State v. Lemacks, 275 S.C. 181, 183, 268 S.E.2d 285, 286 (1980) (concluding
police officers were justified in conducting an inventory search, which was "incident
to [the vehicle's] lawful impoundment and removal to police headquarters because
[the vehicle's] presence in the highway created a serious traffic hazard").
Commonwealth v. Brinson, 800 N.E.2d 1032, 1035 (Mass. 2003) ("A lawful
inventory search is contingent on the propriety of the impoundment of the car.");
State v. Pogue, 868 N.W.2d 522, 528 (N.D. 2015) ("The Fourth Amendment
examination of an inventory search, therefore, turns not on the issue of probable
cause, which is the traditional basis for the warrantless search of vehicles, but on the
issues of whether the vehicle was properly impounded and the search was carried
out in accordance with standard police procedures." (citation omitted)). See
Generally Emile F. Short, Annotation, Lawfulness of "inventory search" of motor
vehicle impounded by police, 48 A.L.R.3d 537 (1973 & Supp. 2018) (collecting state
and federal cases discussing issues related to the propriety of inventory searches of
impounded vehicles).
In my view, the analysis of whether Miller's vehicle was lawfully impounded
necessarily begins with a discussion of the facts and circumstances that preceded
Miller's arrest for driving under suspension. During the suppression hearing, Officer
Westbury testified that, while investigating criminal activity unrelated to the instant
case, he received a citizen's complaint and description of a vehicle seen "going
multiple times" to a location known for drug activity. Shortly thereafter, Officers
Westbury and McDonald observed a vehicle matching the description pull into a gas
station parking lot. Officers Westbury and McDonald, driving separate vehicles,
followed the vehicle after it left the gas station, drove down several residential
streets, and then pulled into and parked in the private driveway of an apartment
complex. It was later determined that Miller's girlfriend resided at the apartment
complex.
After Miller voluntarily exited the vehicle, Officer Westbury requested his
information and then asked Miller for consent to search the vehicle. Miller refused
to consent. While Officer Westbury continued to talk to Miller, Officer McDonald
checked Miller's information and discovered that he was driving with a suspended
license. The officers then arrested Miller for this offense.
Notably, during the suppression hearing, Officer Westbury acknowledged that
this was not a traffic stop and Miller was not suspected of any crime at the time he
parked in the private driveway.7 Officer McDonald also admitted that they "did not
7
Significantly, unlike the defendant in United States v. Brown, 787 F.2d 929 (4th
Cir. 1986), a case relied on by the majority, the officers did not stop Miller's vehicle
after observing a traffic violation on a highway.
pull [Miller] over for a traffic violation." Yet, Officer Westbury asked Miller for
consent to search the vehicle.
Given this evidence, I would find the officers' decision to tow Miller's vehicle
from a private driveway was improper as it was based solely on a suspicion of drug
activity. See Florida v. Wells, 495 U.S. 1, 4 (1990) (recognizing that "an inventory
search must not be a ruse for a general rummaging in order to discover incriminating
evidence"); Bertine, 479 U.S. at 375 ("Nothing in Opperman or [Illinois v.]
Layfayette, [462 U.S. 640 (1983)] prohibits the exercise of police discretion so long
as that discretion is exercised according to standard criteria and on the basis of
something other than suspicion of evidence of criminal activity." (emphasis added));
cf. S. Dakota v. Opperman, 428 U.S. 364, 376 (1976) (upholding inventory search
where "there [was] no suggestion whatever that this standard procedure . . . was a
pretext concealing an investigatory police motive").
However, even accepting that the initial stop was justified and the decision to
impound the vehicle was not pretext for searching Miller's vehicle without a warrant,
I believe the mere existence of a police department policy is insufficient to satisfy
the State's burden of proving the applicability of the inventory search exception to
the Fourth Amendment. See Spencer, 948 N.E.2d at 203 ("[T]he existence of a
police regulation cannot be used as a predicate to determine the lawfulness or
reasonableness of an inventory search of a vehicle."). "To hold otherwise would
grant the police an unlimited ability to evade the requirements of the fourth
amendment by promulgating regulations that authorize the use of inventory searches
following every arrest." Id. Unlike the majority, I do not believe the Columbia
Police Department's policy authorized the officers to seize Miller's vehicle from a
private driveway.
When Section 6 of Chapter 5 of the "Auxiliary Traffic Services" is read as a
whole, it is evident the purpose of the policy is to protect the public from potential
dangers on roadways and highways.8 In fact, much of Section 6 is devoted to
8
Section 1.0 entitled "Directive" provides in pertinent part:
The Columbia Police Department recognizes the responsibility for the
safety of the public using the roads and highways within the City of
Columbia. The Department recognizes the responsibility to assist
motorists in non-emergency and emergency situations that may develop
on the city's streets and highways.
procedures addressing "Abandoned or Derelict" vehicles.9 In view of this
"caretaking" purpose, it is difficult to justify the seizure of Miller's vehicle, which
was parked in a private driveway, when it posed no risk to the public. See United
States v. Duguay, 93 F.3d 346, 353 (7th Cir. 1996) ("The policy of impounding [a]
car without regard to whether the defendant can provide for its removal is patently
unreasonable if the ostensible purpose for impoundment is for the 'caretaking' of the
streets.").
Moreover, Section 7.2, the specific provision relied on by the State to support
the lawfulness of the initial seizure, references a South Carolina code section that
authorizes police officers to tow vehicles "found upon a highway." Section 7.2
authorizes Columbia City police officers to tow:
 Any vehicle from which an officer makes an arrest and there is
no responsible party to whom the arrestee can turn over the
possession of the vehicle (§ 56-5-2520 S.C. Code).10
9
See, e.g., Section 5.0 ("An abandoned vehicle is defined as . . . a motor vehicle
that has remained illegally on private or public property for a period of more than
seven (7) days without the consent of the owner or person in control of the property
(§ 56-5-5810 S.C. Code)."); Section 7.1 (identifying criteria for which an officer
may tow "improperly stopped, standing or parked vehicles" on the highway).
10
Section 56-5-2520 provides in relevant part:
(c) Any police officer may remove or cause to be removed to the nearest
garage or other place of safety any vehicle found upon a highway when:
....
(3) The person driving or in control of the vehicle is
arrested for an alleged offense for which the officer is
required by law to take such person before a magistrate or
other judicial official without unnecessary delay.
S.C. Code Ann. § 56-5-2520(c)(3) (2018) (emphasis added).
Notably, section 56-5-2520 is contained within Chapter 5, which is entitled
"Uniform Act Regulating Traffic on Highways." S.C. Code Ann. §§ 56-5-10 to -
6565 (2018) (emphasis added). The provisions of Chapter 5 "relating to the
operation of vehicles refer exclusively to the operation of vehicles upon highways"
except: (1) "[w]hen a different place is specifically referred to in a given section;
and (2) [t]hat the provisions of Articles 911 and 2312 shall apply upon highways and
elsewhere throughout the State." S.C. Code Ann. § 56-5-20 (2018) (emphasis
added). Neither of these exceptions is present in the instant case.
Further, I believe section 56-5-5635(A) is inapposite. This section states:
Notwithstanding another provision of law, a law enforcement officer
who directs that a vehicle be towed for any reason, whether on public
or private property, must use the established towing procedure for his
jurisdiction. A request by a law enforcement officer resulting from a
law enforcement action including, but not limited to, a vehicle collision,
vehicle breakdown, or vehicle recovery incident to an arrest, is
considered a law enforcement towing for purposes of recovering costs
associated with the towing and storage of the vehicle unless the request
for towing is made by a law enforcement officer at the direct request of
the owner or operator of the vehicle.
S.C. Code Ann. § 56-5-5635(A) (2018). While the statute indicates that law
enforcement may tow a vehicle from private property, this single reference cannot
be construed as an authorization to do so. Rather, the section mandates that law
enforcement follow established towing procedures, which presupposes a lawful
seizure. Therefore, I disagree with the majority's attempt to glean affirmative
authority from sections 56-5-2520 and 56-5-5635 simply because they do not
prohibit police officers from towing a vehicle from private property.
Additionally, given the express authorization in section 56-5-2520(c)(3) for
officers to tow vehicles from highways and the absence of a reference to private
property, I would find the Columbia Police Department's policy conflicts with state
law and is, therefore, void. See Town of Hilton Head Island v. Fine Liquors, Ltd.,
11
Article 9 provides for the duties and reporting procedures following vehicular
accidents. S.C. Code Ann. §§ 56-5-1210 to -1360 (2018).
12
Article 23 provides for the offenses of reckless homicide, reckless driving, and
driving under the influence. S.C. Code Ann. §§ 56-5-2910 to -2995 (2018).
302 S.C. 550, 553, 397 S.E.2d 662, 664 (1990) ("[I]n order for there to be a conflict
between a state statute and a municipal ordinance both must contain either express
or implied conditions which are inconsistent or irreconcilable with each other."
(citation and internal quotations marks omitted)); City of N. Charleston v. Harper,
306 S.C. 153, 156, 410 S.E.2d 569, 571 (1991) ("Where there is a conflict between
a state statute and a city ordinance, the ordinance is void.").
Finally, even accepting the majority's conclusion that the Columbia Police
Department's policy authorized the officers to tow Miller's vehicle from private
property, I would find the officers failed to comply with the procedure outlined in
Section 7.2. In relevant part, Section 7.2 states: "Department personnel may also
tow the following vehicles: Any vehicle from which an officer makes an arrest and
there is no responsible party to whom the arrestee can turn over the possession of
the vehicle (§56-5-2520 S.C. Code)." (Emphasis added.) Contrary to the majority's
interpretation, this provision does not require the responsible party be "present" at
the location of the vehicle about to be towed. Here, Officer McDonald admitted that
he did not check to determine if there was a responsible party despite the requirement
in the policy.
Based on the foregoing, I would conclude that the seizure and the subsequent
inventory search were unreasonable. As a result, I would find the Court of Appeals
erred in affirming the trial judge's decision to deny Miller's motion to suppress the
drug evidence.