14-0174 — State v. Noel FILED
November 6, 2015
released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Benjamin, Justice, concurring:
I concur with the majority opinion. I write separately to address any
contention that the illegal narcotics sought to be suppressed would have inevitably been
discovered during the police’s inventory search of the subject vehicle even had Officer
Adams scrupulously complied with Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173
L. Ed. 2d 485 (2009), by not conducting a search of the passenger compartment incident
to Mr. Noel’s arrest. The majority opinion properly concludes that the State failed to
carry its burden to prove that the police conducted a valid inventory search of the vehicle
that would have excused them from first obtaining a warrant. In so doing, the majority
dispels any notion that inventory searches should routinely afford a governmental agency
a license to nullify the protections against unreasonable searches and seizures provided
by the Fourth Amendment and by Section 6 of Article III of the West Virginia
Constitution. In other words, an inventory search may not be used simply as a
mechanism of convenience by the State to avoid the warrant requirement of our federal
and state constitutions.
The seminal case by this Court addressing the issue of an inventory search
of an automobile is State v. Goff, 166 W. Va. 47, 272 S.E.2d 457 (1980). In Goff, the
defendant was arrested for breaking and entering into a used car dealership after his
1
accomplice was discovered on the accompanying lot driving one of the dealership’s
automobiles. The defendant himself was found seated in a pickup truck parked elsewhere
on the lot, and both men were transported to jail. Thereafter, the police conducted an
inventory search of the pickup, whereupon they discovered the title to the dealership’s
automobile in the truck’s glove compartment. The title was admitted into evidence at the
defendant’s trial. On appeal of his conviction, the defendant asserted, inter alia, that the
inventory search was illegal, requiring suppression of the title. The issue presented was
one of first impression for this Court. To resolve it, we looked to the decision of the
United States Supreme Court in South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct.
3092, 49 L. Ed. 2d 1000 (1976).
In Goff, we noted at the outset the Opperman Court’s acknowledgment that,
under the proper circumstances, a warrantless inventory search of a vehicle could be
made. The decision in Opperman justified an inventory search on the grounds of (1)
protecting the owner’s property while it remains in police custody; (2) protecting the
police against claims of property being stolen; and (3) protecting the police from
potential danger. Opperman also made clear that an inventory search is not a license for
government officials to avoid the requirements of the Fourth Amendment respecting
lawful searches and seizures. Goff recited from Opperman the following limitations to
the inventory search:
The inventory was conducted only after the car had been
impounded for multiple parking violations. The owner,
2
having left his car illegally parked for an extended period, and
thus subject to impoundment, was not present to make other
arrangements for the safekeeping of his belongings. The
inventory itself was prompted by the presence in plain view
of a number of valuables inside the car. . . . [T]here is no
suggestion whatever that this standard procedure, essentially
like that followed throughout the country, was a pretext
concealing an investigatory police motive.
Goff, 166 W. Va. at 55 n.3, 272 S.E.2d at 463 n.3 (quoting Opperman, 428 U.S. at
375-76, 96 S. Ct. at 3100, 49 L. Ed. 2d at 1009).
As a result of the limitations imposed by Opperman, we adopted the
following guidelines for conducting an inventory search in West Virginia in syllabus
points 1 and 2 of Goff:
1. The right to an inventory search begins at the point where
the police have a lawful right to impound the vehicle.
2. An inventory search is not proper when there is no
showing that the police saw any items of personal property in
the interior of the vehicle, which would warrant the initiation
of an inventory search.
We applied these guidelines in Goff and concluded that the inventory search in that case
was unlawful:
Even if we were to assume that there had been an actual
lawful impoundment of the truck, the inventory search would
not be proper in this case because there was no showing that
the police saw any items of personal property in the interior
of the vehicle, which would warrant the initiation of an
inventory search.
***
The basis for this rule is that unless some personal property is
seen in plain view in the vehicle there is little, if any, basis for
3
an inventory search. The purpose for a routine police
inventory search is to secure personal property from being
stolen or lost while the car is in custody, but without any
visible personal property there is a diminished likelihood that
the car will be broken into. On the other hand, it must be
remembered that once the vehicle has been impounded the
police have the right to secure it by rolling up the windows
and locking the doors. Any personal property seen in the
course of this action can lead to a fuller inventory search.
Goff, 166 W. Va. at 51-53, 272 S.E.2d at 461-62.
We relied on Goff to reverse a conviction in State v. Perry, 174 W. Va. 212,
324 S.E.2d 354 (1984). The defendant in Perry was arrested for driving without a
license, and his vehicle was impounded. During the subsequent inventory search, the
police found a bag of marijuana in the trunk of the vehicle. The State sought and
successfully obtained the vehicle’s forfeiture on the ground that it had been used to
facilitate a crime. On appeal, the defendant maintained, inter alia, that the inventory
search was unlawful because the police did not give him the option of having someone
retrieve the car, rather than impounding it. We concurred in the defendant’s position:
Courts have held that a driver must be given a reasonable
opportunity to make some alternative disposition of the
vehicle before the police may impound it for the sole purpose
of protecting it and its contents from theft or damage. . . . We
agree with this principle, although as we have previously
stated, the duty to consult with a driver concerning the
disposition of his vehicle does not exist in every
impoundment situation. . . . However, in the situation where
the owner or possessor of a vehicle has been arrested in or
near his car, ordinarily, he must be given a reasonable
opportunity to make some alternative disposition of the
4
vehicle before the police may impound it for the sole purpose
of protecting it and its contents from theft or damage.
***
In this case, we find that the arresting officer did not have a
ground for impoundment that would enable him to avoid
giving the driver a reasonable opportunity to make an
alternative disposition. The failure to permit such alternative
disposition renders the impoundment and subsequent
inventory search invalid. We specifically base this
requirement, as we did in Goff, on Section 6 of Article III of
the West Virginia Constitution.
Perry, 174 W. Va. at 217-18, 324 S.E.2d at 359-60.
To reiterate, our decision in Perry requires that the arrested driver
ordinarily be given a reasonable opportunity to arrange to have the vehicle removed by
means other than police impoundment. If the vehicle is nonetheless impounded, then
Goff authorizes an inventory search of a vehicle only when items of personal property are
in plain view within. Moreover, controlling precedent strongly suggests that inventory
searches so authorized be conducted pursuant to established procedures. In Colorado v.
Bertine, 479 U.S. 367, 107 S. Ct. 738, 93 L. Ed. 2d 739 (1987), the Supreme Court of the
United States concurred with Opperman’s assessment of the reasonableness of
warrantless inventory searches based on “caretaking procedures designed to secure and
protect vehicles and their contents within police custody.” Bertine, 479 U.S. at 372, 107
S. Ct. at 741, 93 L. Ed. 3d at 746.
5
Indeed, in Opperman, the Court discussed with approval its prior decision
in Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973), distilling
therefrom that protective inventory searches should be “carried out in accordance with
standard procedures in the local police department, a factor tending to ensure that the
intrusion would be limited in scope to the extent necessary to carry out the caretaking
function.” Opperman, 428 U.S. at 375, 96 S. Ct. at 3100, 49 L. Ed. 2d at 1008 (emphasis
in original). The requirement was met in Opperman by virtue of the searching officers
having followed “standard police procedures, prevailing throughout the country and
approved by the overwhelming majority of courts.” Opperman, 428 U.S. at 376, 96 S.
Ct. at 3100, 49 L. Ed. 2d at 1008.
That vehicles are routinely impounded and searched, regardless of
circumstances, does not equate to the implementation and observance of routine,
standardized procedures in the conduct of such searches. We made that clear in State v.
York, 203 W. Va. 103, 506 S.E.2d 358 (1998), in which we reversed the circuit court’s
failure to suppress the evidence seized during an inventory search, where the chief of the
police department testified that “inventory searches were routinely conducted of
impounded vehicles” and that he would have conducted the particular search at issue
regardless of whether he had seen any personal property in plain view inside the subject
vehicle. See id., 203 W. Va. at 106, 109, 506 S.E.2d at 361, 364.
6
On a motion to suppress, “[w]hen the State seeks to introduce evidence that
was seized during a warrantless search, it bears the burden of showing the need for an
exemption from the warrant requirement and that its conduct fell within the bounds of the
exception.” State v. Lacy, 196 W. Va. 104, 111, 468 S.E.2d 719, 726 (1996). In the case
at bar, the State put forth no evidence that the police legitimately saw any item of value in
the vehicle driven by Mr. Noel, no evidence that he was asked whether he wanted to
make arrangements to have the vehicle removed, and no evidence that the impoundment
and inventory search were conducted pursuant to any standards or procedures adopted by
the Bluefield Police Department or the City of Bluefield.
Indeed, the only authority I could find potentially governing the situation
was a City ordinance permitting the impoundment of vehicles that have been wrecked,
abandoned, illegally parked, or otherwise found to be in violation of legal requirements,
in which case the impounding officer “is authorized to do every act, including entry into
such vehicle, which may be reasonably necessary to effect such impounding.” Bluefield,
W. Va., Code of Ordinances § 40-13 (1974). The ordinance does not address
impoundment of a vehicle associated with a moving traffic violation, and it provides no
standards or procedures to assist a police officer who might conduct an inventory search
pursuant to such an impoundment. Officer Adams’ testimony at the suppression hearing
that his department’s police officers, presumably as a matter of routine, simply “do
7
inventories on cars that we tow” underscores the lack of standards or procedures
necessary for consideration of an exception to the warrant requirement herein.
Any alternative disposition of this appeal is therefore controlled in
substantial part by our decision in York disapproving of routine inventory searches, and in
the remainder by our decisions in Goff and Perry requiring, respectively, that such
searches, when appropriate, be triggered by the need to secure observable personal
property and that arrested drivers be reasonably given an alternative to impoundment for
disposing of their vehicles. In the final measure, this court is obliged to respect and give
effect to the limitations on government actions contained within our federal and state
constitutions, and to ensure that inventory searches not simply be “a ruse for a general
rummaging in order to discover incriminating evidence.” Whren v. United States, 517
U.S. 806, 811, 116 S. Ct. 1769, 1773, 135 L. Ed. 2d 89 (1996).
8