State v. Tirado

2018 UT App 132

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
ISAAC ALBERTO TIRADO,
Appellant.

Opinion
No. 20160284-CA
Filed June 28, 2018

Second District Court, Farmington Department
The Honorable Thomas L. Kay
No. 131702061

Randall W. Richards, Attorney for Appellant
Sean D. Reyes and Lindsey L. Wheeler, Attorneys
for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES
GREGORY K. ORME and DAVID N. MORTENSEN concurred.

HARRIS, Judge:

¶1 Defendant Isaac Alberto Tirado was a passenger in a car
that was pulled over and eventually impounded. While
conducting an inventory search of the impounded vehicle,
officers found four types of illegal drugs near the passenger seat:
methamphetamine, heroin, marijuana, and unprescribed
oxycodone. After being charged with various drug-related
offenses, Defendant moved to suppress the evidence discovered
during the inventory search. The district court denied that
motion, and Defendant appeals. We affirm.
 State v. Tirado

BACKGROUND

¶2 While on patrol one afternoon, a Layton City police
officer (Officer) noticed a car with an expired registration.
Officer pulled over the vehicle, which had two occupants: a
driver (Driver) and Defendant, who was sitting in the front
passenger seat. 1 Officer approached the vehicle and asked Driver
for his license and registration, but Driver was unable to
produce a current registration. Officer also asked Defendant for
identification, but Defendant did not have any and instead
simply gave Officer his name. Officer then returned to his patrol
car to run a records check on the information he was given.

¶3 After checking Driver’s information, Officer learned that
the vehicle had been unregistered for nearly a year, and that
Driver had an outstanding “traffic warrant” for expired
registration. After receiving that information, Officer noted that,
due to its expired registration, he could “technically” impound
the vehicle, but Officer did not at that point decide whether he
would actually do so. Officer then ran a records check on
Defendant, and obtained information that led him to believe that
Defendant was a “gang member and drug abuser.” At that point,
Officer determined that he would in fact impound the vehicle,
but decided not to arrest Driver on the outstanding warrant;
instead, Officer gave Driver a citation for expired registration.

¶4 The Layton City Police Department has a written policy
(the Policy) that governs the manner in which its officers are to

1. The entire traffic stop was captured on Officer’s dashboard
camera, and the video recording from that camera was admitted
into evidence at the first suppression hearing. We have reviewed
that video recording, and some of the facts set forth herein are
informed by our review of that video.

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inventory the contents of the vehicles they impound. In relevant
part, the Policy provides as follows:

All property in a stored or impounded vehicle shall
be inventoried and listed on the Vehicle Impound
Report Form. This includes the trunk and any
compartments or containers, even if closed and/or
locked. Members conducting inventory searches
should be as thorough and accurate as practical in
preparing an itemized inventory. These inventory
procedures are for the purpose of protecting an
owner’s property while in police custody, to
provide for the safety of officers, and to protect the
Department against fraudulent claims of lost,
stolen or damaged property.

....

Unless it would cause an unreasonable delay in the
completion of a vehicle impound/storage or create
an issue of officer safety, officers should make
reasonable accommodations to permit a
driver/owner to retrieve small items of value or
personal need (e.g., cash, jewelry, cell phone,
prescriptions) which are not considered evidence
or contraband.

Officer later testified that it is “common practice” among Layton
City officers to simply photograph the contents of the vehicle
rather than to meticulously list each item on a written form.

¶5 After deciding to impound the vehicle, Officer asked both
Driver and Defendant to exit the car, and explained his intention
to tow the vehicle. By this time, a backup officer (Backup Officer)
had arrived to assist. Officer told both Driver and Defendant that
they were free to go and that they could call someone to pick

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them up. Driver and Defendant did not immediately leave the
scene, and Officer asked them if they wanted any items from the
car before it was impounded. Defendant asked for a backpack.
Before giving the backpack to Defendant, however, Officer
searched it and found a computer, an iPad, and a cell phone
inside; Officer then ran the serial numbers of the items to
determine if any were stolen, and soon determined that they
were not listed as stolen. Finding nothing troubling in the
backpack, Officer then returned it and its contents to Defendant
without logging it or photographing it.

¶6 The officers then asked Driver and Defendant whether
they would be willing to consent to a search of their persons, and
they agreed. The officers then searched both Driver and
Defendant, and found no illegal items.

¶7 The officers then began inventorying the contents of the
vehicle that was about to be impounded. Officer first located a $5
bill between the passenger seat and the console, and asked
Driver and Defendant if they knew whose it was. Defendant
claimed the bill as his, and Officer gave the bill to Defendant
without logging it or photographing it. Officer also found a
semi-transparent pill bottle labeled as amoxicillin and, after
examining it but not opening it, returned that bottle to
Defendant without logging it or photographing it.

¶8 Officer continued his search of the area between the
passenger seat and the center console, and discovered three
baggies containing a white crystalline substance that Officer
believed was methamphetamine, as well as a second semi-
transparent prescription pill bottle, this one with a label that
bore Defendant’s name and indicated a prescription for Lortab.
Officer later testified that the pill bottle was transparent enough
for him to see that it contained some pills as well as a small
plastic bag. Officer then opened the pill bottle and saw that the
plastic bag contained a “brown tar substance” which Officer

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believed was heroin; the pills found inside the bottle turned out
to be oxycodone, and not Lortab. Soon thereafter, and in the
same general location, Officer also found a “small bag of a green
leafy substance that smelled like marijuana.” After discovering
these items, Officer arrested Defendant.

¶9 After arresting Defendant, the officers continued with
their inventory of the vehicle’s contents. The officers did not
include in their inventory any of the illegal drugs found in the
vehicle, because those drugs were “taken into evidence.” At the
conclusion of the inventory, Backup Officer filled out a Vehicle
Impound Report Form. However, on the form, the officers did
not individually log the items found in the vehicle; instead, they
opted to simply take a series of photographs depicting the
contents of the vehicle, and indicated on the form that “property
[was] photographed.”

¶10 The State charged Defendant with various drug-related
offenses, including possession of methamphetamine, heroin,
oxycodone, and marijuana. Defendant moved to suppress all of
the evidence discovered during the inventory search. After
holding two evidentiary hearings, the district court denied
Defendant’s motion on two independent grounds: the search of
the pill bottle was legally justified by the automobile exception
to the warrant requirement, and the evidence was discovered
pursuant to a lawful inventory search.

¶11 After the district court’s ruling on the motion to suppress,
Defendant entered a conditional guilty plea to two second-
degree felonies: possession of a controlled substance with intent
to distribute, and possession or use of a second controlled
substance. The court dismissed the remaining charges as part of
the plea agreement. Also as part of the plea, Defendant reserved
his right to appeal the district court’s decision to deny the

20160284-CA 5 2018 UT App 132
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motion to suppress, which right Defendant now exercises by
challenging that decision on appeal. 2

STANDARD OF REVIEW

¶12 “We review a [district] court’s decision to grant or deny a
motion to suppress for an alleged Fourth Amendment violation
as a mixed question of law and fact.” State v. Fuller, 2014 UT 29,
¶ 17, 332 P.3d 937. Under this standard, “[w]hile the court’s
factual findings are reviewed for clear error, its legal conclusions
are reviewed for correctness, including its application of law to
the facts of the case.” Id.

ANALYSIS

A

¶13 The Fourth Amendment to the United States Constitution
provides the right of people “to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures,” and provides that “no Warrants shall issue, but upon
probable cause.” U.S. Const. amend. IV. Automobiles are
considered “effects” and are therefore “within the reach of the
Fourth Amendment,” but because of the “inherent mobility of
automobiles” and because “the expectation of privacy with

2. With the consent of the prosecution and the approval of the
judge, a defendant may enter a conditional guilty plea, while
“preserv[ing] [a] suppression issue for appeal.” State v. Sery, 758
P.2d 935, 938–40 (Utah Ct. App. 1988), disagreed with on other
grounds by State v. Pena, 869 P.2d 932 (Utah 1994). “A defendant
who prevails on appeal [after entering a conditional plea] shall
be allowed to withdraw the plea.” Utah R. Crim. P. 11(j).

20160284-CA 6 2018 UT App 132
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respect to one’s automobile is significantly less than that relating
to one’s home or office,” “warrantless examinations of
automobiles have been upheld in circumstances in which a
search of a home or office would not.” See South Dakota v.
Opperman, 428 U.S. 364, 367 (1976).

¶14 One such circumstance is the “inventory search” of a
vehicle (or other item of property) that is impounded by law
enforcement officers. Such a search “constitutes an exception to
the warrant requirement,” and is justified by concerns about
“protecting the police and public from danger, avoiding police
liability for lost or stolen property, and protecting the owner’s
property.” See State v. Hygh, 711 P.2d 264, 267 (Utah 1985); accord
Opperman, 428 U.S. at 369. For all of these reasons, officers are
permitted to ascertain and log the contents of property
(including vehicles) that they impound.

¶15 To be lawful, an inventory search must meet two
requirements. First, there must be “reasonable and proper
justification for the impoundment of the vehicle.” Hygh, 711 P.2d
at 268. Such justification can be drawn from either “explicit
statutory authorization or by the circumstances surrounding the
initial stop.” Id. Second, there must be “‘an established
reasonable procedure for safeguarding impounded vehicles and
their contents,’” and the State must show that “‘the challenged
police activity was essentially in conformance with that
procedure.’” Id. at 269 (quoting 2 LaFave, Search & Seizure § 7.4,
at 576–77 (1978)); see also Opperman, 428 U.S. at 372 (stating that
“inventories pursuant to standard police procedures are
reasonable”).

¶16 Inventory searches, however, may not be used as a
“pretext” for warrantless investigatory searches. If the police are
acting “in bad faith or for the sole purpose of investigation,” an
inventory search violates the Fourth Amendment. See Colorado v.
Bertine, 479 U.S. 367, 372 (1987); see also Florida v. Wells, 495 U.S.

20160284-CA 7 2018 UT App 132
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1, 4 (1990) (stating that “an inventory search must not be a ruse
for a general rummaging in order to discover incriminating
evidence”). While our supreme court has eliminated the
“pretext” doctrine in the context of traffic stops, see State v. Lopez,
873 P.2d 1127, 1140 (Utah 1994) (stating that “as applied to traffic
stops, we reject the pretext stop doctrine”), pretext remains a
relevant concept in assessing the validity of inventory searches,
see id. at 1138 (stating that the court’s decision “should not be
interpreted to mean that evidence of an officer’s subjective intent
or departure from standard police practice is never relevant to
the determination of Fourth Amendment claims,” and citing the
inventory search context as one example of pretext’s continuing
relevance).

¶17 However, the pretext doctrine’s application in the
inventory search context is not so broad as to invalidate an
otherwise-completely-lawful inventory search, merely because
the officer expected to discover contraband. If the requirements
of a lawful inventory search are met, the search is constitutional
“despite an officer’s subjective desire to uncover criminal
evidence.” Linin v. Neff, No. 2:15-cv-298-JNP-PMW, 2017 WL
3972982, at *11 (D. Utah Sept. 7, 2017) (quotation simplified),
appeal docketed, No. 17-4158 (10th Cir. Oct. 10, 2017); see also
United States v. Lewis, 3 F.3d 252, 254 (8th Cir. 1993) (per curiam)
(“Having conducted the search of [the defendant’s] van
according to standardized inventory procedures, the officers’
coexistent suspicions that incriminating evidence might be
discovered did not invalidate their lawful inventory search.”);
United States v. Roberson, 897 F.2d 1092, 1096 (11th Cir. 1990)
(explaining that the Eleventh Circuit has held that “the mere
expectation of uncovering evidence will not vitiate an otherwise
valid inventory search” (quotation simplified)); United States v.
Judge, 864 F.2d 1144, 1147 n.5 (5th Cir. 1989) (acknowledging that
“[w]hile there are undoubtedly mixed motives in the vast
majority of inventory searches, the constitution does not require

20160284-CA 8 2018 UT App 132
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and our human limitations do not allow us to peer into a police
officer’s ‘heart of hearts’”); United States v. Frank, 864 F.2d 992,
1001–02 (3d Cir. 1988) (holding that even though a detective
knew he “lacked probable cause to obtain a search warrant” and
was aware of the defendant’s “fugitive status,” the “mere fact
that an inventory search may also have had an investigatory
purpose does not . . . invalidate it”).

¶18 In performing an inventory search, an officer may open
and inventory the contents of any containers (e.g., glove
compartments, boxes, backpacks, pill bottles) that remain with
the impounded automobile, provided that the police department
of which the officer is a part has a standardized procedure
regarding the opening of containers, and the officer substantially
follows it. See Bertine, 479 U.S. at 368–76; see also id. at 376
(Blackmun, J., concurring) (stating that “police officers may open
closed containers while conducting a routine inventory search”
if they are following “standardized police procedures,” and that
“[t]his absence of discretion ensures that inventory searches will
not be used as a purposeful and general means of discovering
evidence of crime”); State v. Shamblin, 763 P.2d 425, 428 (Utah Ct.
App. 1988) (“With a standardized, mandatory procedure, the
minister’s picnic basket and grandma’s knitting bag are opened
and inventoried right along with the biker’s tool box . . . .”).

B

¶19 Applying these principles to the facts of this case, we
conclude that the officers executed a lawful inventory search of
Driver’s vehicle, and that the district court did not err by
denying Defendant’s motion to suppress. 3

3. The State raises a number of other arguments on appeal,
including an argument that the search was permissible pursuant
(continued…)

20160284-CA 9 2018 UT App 132
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¶20 The first requirement for a lawful inventory search—that
Officer had a “reasonable and proper justification” for
impounding the vehicle, see Hygh, 711 P.2d at 268—is met here.
Indeed, Defendant makes no argument that Officer lacked a
legal basis to impound the vehicle. The vehicle had no current
registration, and had not been current for nearly a year. Officer
therefore had discretion to impound the vehicle.

¶21 Defendant vigorously argues, however, that the second
requirement—substantial compliance with the Policy—is not
met here. Defendant argues that Officer failed to follow the
Policy in several particulars. First, Defendant points out that, on
the Vehicle Impound Report Form, the officers did not
separately list the items found in the vehicle; instead, the officers
photographed the items and simply stated, on the form, that
“property [was] photographed.” Second, Defendant argues that
Officer should not have opened and searched his backpack
before giving it back to him. Third, Defendant argues that
Officer should not have opened Defendant’s second prescription
pill bottle, and instead should have given it to Defendant. We
find these arguments unpersuasive.

¶22 First, at the end of the inventory search, Backup Officer
filled out a Vehicle Impound Report Form. Defendant correctly
points out that the officers did not individually describe and log
each individual item on that form. Defendant notes that the
Policy requires all property found in an impounded vehicle to be
“inventoried and listed” on the report form, and asserts that the
officers’ actions in photographing the property instead of

(…continued)
to the “automobile exception” to the warrant requirement.
Because we resolve this appeal by concluding that the officers
conducted a lawful inventory search of the vehicle, we need not
reach the State’s alternative arguments.

20160284-CA 10 2018 UT App 132
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individually listing each item in written form was a material
violation of the terms of the Policy. We disagree. Police officers
do not necessarily need to achieve strict compliance with the
terms of the applicable inventory search policy; rather, they need
only be “essentially in conformance” with its terms. Hygh, 711
P.2d at 269 (quotation simplified). Photographing the property
is, in essence, just another way of documenting it; one might
even characterize a series of photographs as a pictorial “list” of
the property. Defendant does not argue here that the manner in
which the officers photographed the property was deficient, or
that the officers’ photographs do not constitute a complete
depiction of the property contained in the vehicle after
impound. 4 We are satisfied that taking a thorough series of
photographs of all property contained in an impounded vehicle

4. Defendant does argue that the officers failed to include the
seized drugs in their photographic inventory. However, since
that property was not going to remain with the vehicle after
impound and, instead, was seized and taken to the evidence
room for safekeeping, it did not need to be included in the
inventory report form. For this same reason, the officers did not
need to inventory and log the backpack, $5 bill, and amoxicillin
bottle, since those items were not going to remain with the
vehicle after impound. Given that inventory searches exist to
“protect[] the police and public from danger, avoid[] police
liability for lost or stolen property, and protect[] the owner’s
property,” see State v. Hygh, 711 P.2d 264, 267 (Utah 1985), it is
not necessary for officers to inventory and log property that does
not remain with the vehicle after impound, see, e.g., People v.
Blair, 846 N.Y.S.2d 847, 848 (N.Y. App. Div. 2007) (stating that
“the objectives of an inventory search were met” where the
officers “catalogued the items remaining in the vehicle” but did
not catalogue certain items returned to the owner prior to
impound).

20160284-CA 11 2018 UT App 132
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constitutes substantial compliance with a policy that requires
such property to be “inventoried and listed.”

¶23 Second, because the backpack was not going to remain
with the vehicle after impound, it did not need to be inventoried,
and therefore Officer’s search of the backpack was not part of the
inventory search. Even if we assume, without deciding, that
Officer’s search of the backpack was unlawful, Officer’s actions
in searching the backpack did not impact the validity of the
actual inventory search. If the officers had found contraband
inside the backpack, Defendant may have been able to argue for
suppression of that evidence, 5 but the officers found nothing
illegal inside the backpack, and the contents of the backpack
form no part of the State’s prosecution of Defendant in this case.
We consider Officer’s search of the backpack to be a separate
issue, one that is essentially irrelevant to the validity of the
officers’ inventory search of the vehicle. Any infirmities in the
search of the backpack have nothing to do with lack of
compliance with the terms of the Policy, at least as concerns the
inventory search itself.

¶24 Third, Officer’s actions in opening the semi-transparent
prescription pill bottle with Defendant’s name on it were in
compliance with the Policy, which instructs officers to open and
inventory the contents of “the trunk and any compartments or

5. We express no opinion here regarding whether any such
argument would have succeeded. However, we note that our
supreme court has, on at least one occasion, sanctioned the
search of a backpack and a purse that were returned to the
driver and the passenger before the vehicle was impounded. See
State v. Cole, 674 P.2d 119, 126 (Utah 1983) (affirming the denial
of a motion to suppress evidence found in a backpack and a
purse that officers had at one point returned to their owners but
later demanded to search as part of an inventory search).

20160284-CA 12 2018 UT App 132
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containers” that are to remain with the vehicle, “even if closed
and/or locked.” As noted above, it is well-established that
officers conducting inventory searches of impounded vehicles
may open containers found inside the vehicle, as long as they do
so pursuant to a standardized policy regarding containers. See
Bertine, 479 U.S. at 368–76. A pill bottle is a container, and
Officer’s actions in opening the pill bottle were in compliance
with the Policy.

¶25 Defendant, however, takes issue with Officer’s decision to
open the second pill bottle but not the first—the one with the
amoxicillin label. We do not view Officer’s actions as
inconsistent with the Policy. As noted, the Policy encourages
officers to “make reasonable accommodations” in giving specific
small items of “personal need,” specifically including
“prescriptions,” back to the driver or owner prior to
impoundment. By giving the amoxicillin back to Defendant
before impoundment, Officer was acting in a manner that was
consistent with the Policy.

¶26 With regard to the second pill bottle, Officer testified that
he could see that it contained pills as well as a small plastic bag.
At that point, Officer determined to open the second bottle. This
too is in compliance with the Policy, which authorizes the return
of personal items to their owners prior to impoundment only if
the items “are not considered evidence or contraband.” After
looking at the semi-transparent bottle and ascertaining that it
contained a plastic bag in addition to pills, Officer suspected that
the container might contain contraband. Officer’s decision to
decline to give the bottle back to Defendant was in accordance
with the Policy, as was Officer’s next decision—made as soon as
he determined not to return the bottle to Defendant—to open the
container.

¶27 Finally, Defendant makes a general argument that the
inventory search of Driver’s vehicle was simply a pretext for an

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investigatory search—a search that Officer wished to conduct
based on his suspicions about Defendant’s previous involvement
with drugs. Defendant correctly points out that Officer
developed such suspicions after running Defendant’s name
through a police database, and Defendant also correctly notes
that there is some evidence in this case that Officer may not have
impounded Driver’s vehicle in the absence of those suspicions. 6
However, as noted, the fact that an officer has “coexistent
suspicions that incriminating evidence might be discovered”
does not invalidate an otherwise-lawful inventory search. See
Lewis, 3 F.3d at 254. As in Judge, “[i]t would be disingenuous of
us to pretend” that, when the officers began their search of
Driver’s vehicle, “they weren’t hoping to find [some] evidence to
use against” Driver or Defendant. See Judge, 864 F.2d at 1147 n.5.
However, such “mixed motives” are present “in the vast
majority of inventory searches,” id., and such mixed motives do
not operate to invalidate an inventory search that otherwise
meets the constitutional requirements. Here, there is no dispute
that Officer had a legitimate reason to impound the vehicle, and
we are satisfied that the officers acted in at least substantial
compliance with the Policy. Because these requirements are met,
the fact that the officers may have also suspected that they might
find contraband inside the vehicle does not invalidate the search.

¶28 Affirmed.

6. For instance, at one point prior to running a records check on
Defendant, Officer mused that “[t]echnically I could tow his
vehicle today” based on the expired registration, but stated that
“I don’t know if I will or not.” However, after the records check
revealed information that led Officer to believe that Defendant
was a “gang member” and “drug abuser,” Officer became more
interested in searching and/or impounding the vehicle,
eventually stating that “I’m gonna tow the car.”

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