State v. Atkinson

*3PETERSON, C. J.

The issue in this case is whether a police inventory of the contents of an impounded automobile without a search warrant violated defendant’s right to be secure against unreasonable searches and seizures as guaranteed by the state and federal constitutions.1

I

A person called the police during early morning hours to report a man acting suspiciously in the neighborhood. The police patrolled the neighborhood and found an unattended car the suspect may have been driving. With some police remaining at the car, others continued to check the area in an attempt to find the suspect. In addition, unsuccessful efforts were made to contact the car’s owner to retrieve the vehicle prior to having it towed away.

After approximately three and one-half hours, the car was “impounded” and towed to a locked police storage shed until it could be inventoried.

A few hours later, the police “inventoried” the car, that is, an officer went through the car’s interior, including looking under the seats and into the unlocked glove compartment, but not the locked trunk,2 and prepared a detailed list of items in the vehicle. At the completion of the inventory, the items were left in the car. The officer testified that the inventory was conducted in accordance with Polk County *4Sheriffs Department policy. When asked whether he had been told prior to taking the inventory that the automobile had been seized because it was suspected of being involved in a burglary, the officer who performed the “inventory” of the contents of the vehicle said he had. He also testified that he was “looking for evidence of a crime” while carrying out the standard inventory practice of the department. In the course of the inventory, the inventorying officer opened the unlocked glove compartment and found items which may link defendant to burglaries in the area, items which are the subject of defendant’s motion to suppress.

Originally, the state appealed an order allowing, in part, the defendant’s motion to suppress. The defendant cross-appealed from the order denying other parts of his motion to suppress. ORS 138.040. The Court of Appeals reversed and remanded with instructions to suppress a map and bottle found on examining the glove compartment of the defendant’s car, stating that the inventory of the glove compartment exceeded what we found permissible under Article I, section 9, of the Oregon Constitution in State v. Keller, 265 Or 622, 510 P2d 568 (1973). Four judges specially concurring rejected Keller’s application to the case but reached the same result based on State v. Lowry, 295 Or 337, 667 P2d 996 (1983). Two dissenters contended that State v. Keller, supra, does not preclude the inventory of a glove compartment and would affirm the trial court under South Dakota v. Opperman, 428 US 364, 96 S Ct 3092, 49 L Ed 2d 1000 (1976).

II

The overall principle repeatedly stated in this court and the Supreme Court of the United States is that “[ejxcept in a few carefully defined classes of cases, a search of private property without valid consent is ‘unreasonable’ unless it has been authorized by a valid search warrant.” South Dakota v. Opperman, supra, 428 US at 381 (Powell, J., concurring); See also State v. Greene, 285 Or 337, 340-41, 591 P2d 1362 (1979). Under the federal constitution, cases of noninvestigatory inventories of the contents of impounded automobiles have been held to be one of those excepted classes.

The only prior pronouncement by this court that touches on an inventory of an automobile apparently assumed that no search warrant is required to inventory the contents of *5a lawfully impounded vehicle. State v. Keller, 265 Or 622, 629, 510 P2d 568 (1973). In Keller, this court distinguished the search of a fishing tackle box within a vehicle from a general inventory of the vehicle, holding the former invalid and stating that “there is a delicate balance between conflicting public and private interests — the need to search to protect law officers and car owners and the invasion of Fourth Amendment protected interests of private citizens.” 265 Or at 629.

Until today, this court has not further considered inventories of lawfully impounded vehicles. The Court of Appeals has held that when an automobile is lawfully impounded, the impounding officer may enter the vehicle and conduct an inventory of personal property. State v. Weeks, 29 Or App 351, 355, 563 P2d 760 (1977). In State v. Crosby, 35 Or App 617, 582 P2d 40 (1979), the Court of Appeals concluded that the locked trunk of a car was within the proper scope of an inventory. 35 Or App at 622.

The Supreme Court of the United States has reached the same result. In South Dakota v. Opperman, supra, the Supreme Court held that noninvestigative police inventories of automobiles lawfully within governmental custody are constitutional and not subject to the warrant requirement of the Fourth Amendment. The court concluded that the noncriminal context of inventories and the inapplicability in such a setting of the requirement of probable cause obviate the requirement of search warrants.

“With respect to noninvestigative police inventories of automobiles lawfully within governmental custody, however, the policies underlying the warrant requirement * * * are inapplicable.” Opperman, supra, 428 US at 370 n 5.

The court concluded that the Fourth Amendment permits a routine police inventory of the closed glove compartment of a locked automobile impounded for ordinary parking violations.3 In a separate concurring opinion, Justice Powell further explained why routine inventories should not be conditioned on warrants issued by a judicial officer.

*6“Inventory searches * * * are not conducted in order to discover evidence of crime. The officer does not make a discretionary determination to search based on a judgment that certain conditions are present. Inventory searches are conducted in accordance with established police department rules or policy and occur whenever an automobile is seized. There are thus no special facts for a neutral magistrate to evaluate.” South Dakota v. Opperman, supra, 428 US at 383.

In a recent opinion, Illinois v. LaFayette, 462 US 640, 103 S Ct 2605, 77 L Ed 2d 65 (1983), the Supreme Court of the United States further explained the Fourth Amendment’s constraint on police administrative methods.

«* * * jn South Dakota v. Opperman, supra, * * * [w]e found no need to consider the existence of less intrusive means of protecting the police and the property in their custody — such as locking the car and impounding it in safe storage under guard. * * * [T]he real question is not what ‘could have been achieved,’ but whether the Fourth Amendment requires such steps; it is not our function to write a manual on administering routine, neutral procedures of the station house. Our role is to assure against violations of the Constitution.
“* * * We are hardly in a position to second guess police departments as to what practical administrative method will best deter theft by and false claims against its employees and preserve the security of the station house.” Illinois v. LaFayette, 462 US 640, 103 S Ct 2605, 77 L Ed 2d 65, 71-72 (1983).

Ill

Like the Supreme Court of the United States, we are a judicial, not a legislative body. It is not our function to decide as a matter of policy how, and for what purpose, automobiles or other private property that come into official custody should be examined. That is a matter for politically accountable officials to decide by laws, ordinances, or delegations of rulemaking authority. Our role, as the Supreme Court said in Illinois v. LaFayette, supra, is to assure that such policies and procedures as are adopted do not violate constitutional guarantees.

The Oregon legislature could adopt a uniform standard for dealing with the contents of impounded vehicles, but it has not done so, possibly because different procedures might *7be appropriate for various circumstances in different communities throughout the state. For instance, a requirement that police attempt to contact the owner of each impounded vehicle before undertaking an inventory might presuppose that all law enforcement agencies have a uniform capability that may or may not exist. Nor are we told whether Polk County has adopted an official policy for dealing with impounded vehicles and their contents. Although, for instance, rolling up the windows and locking the car might be less intrusive than an inventory of its contents, the only issue before us is whether this is the only policy allowed by Article I, section 9, of the Oregon Constitution. We hold that it is not. Rather, we hold that a policy may be adopted and uniformly administered to inventory the contents of ordinary vehicles in order to protect private property and for ancillary purposes under conditions set forth below.

Three principal purposes often are put forward to justify a governmental policy of inventorying impounded personal property.

First, it is asserted that inventories protect the owner’s property while in police custody. Once an adequate inventory has been made, the police can take appropriate action to safeguard the contents, as necessary. Theft and vandalism are prevented or reduced. There is a substantial gain in security if contents are inventoried and valuable items removed for storage. See, e.g., United States v. Mitchell, 458 F2d 960, 961 (9th Cir 1972).

Second, it is asserted that inventories reduce and tend to prevent the assertion of false claims against police. Even though the inventory is not a completely effective means of preventing such claims (because items can be taken before the inventory or the inventory can itself be falsified), the existence of the practice tends to discourage the fraudulent assertion of claims for lost or stolen property. See, e.g., United States v. Kelehar, 470 F2d 176, 178 (5th Cir 1972).

Third, it is asserted that in an age of increasing violence, some danger to police and others arises from the impoundment of uninventoried property. This danger, in the occasional case, is great and is of sufficient magnitude to be considered. See, e.g., Cardenas v. Pitchess, 506 F2d 1224 (9th Cir 1974) (vehicle owner’s affiliation with group suspected of *8bombing justified inventory for safety of police). Accord South Dakota v. Opperman, supra, 428 US at 378 (Powell, J., concurring). Reliance on this reason must have a concrete basis in specific circumstances; it may not simply be assumed as a basis of a general precautionary practice.

If the responsible policy makers decide that protective reasons of this nature justify prescribed procedures for inventorying the contents of an impounded vehicle, such a policy is not inherently “unreasonable” within the meaning of Article I, section 9, if it complies with the following conditions:

A. The vehicle must be lawfully impounded. For various reasons of public necessity, it is sometimes necessary that automobiles be taken into governmental custody. Lawful impoundment of a vehicle is a necessary prerequisite to an inventory of its contents by the government or its agents. See generally Dyke v. Taylor Implement Mfg. Co., 391 US 216, 88 S Ct 1472, 20 L Ed 2d 538 (1968).

There are occasions when state officials (such as police officers, agriculture inspectors, health and safety inspectors) have an administrative or civil duty, authority or responsibility to take custody of personal property. When governmental authorities have lawful “administrative” custody of personal property, then they may take a series of reasonable steps which, depending upon the purpose of the custody, can include a detailed “inventory” of the property’s contents. In such a context there is no “search” for predictable “things to be seized” that could be “particularly described,” as the warrant requirement of Article I, section 9, contemplates. The requirement fits such a purely protective inventory less than the kinds of inspections involved in Marshall v. Barlow’s, Inc., 436 US 307, 98 S Ct 1816, 56 L Ed 2d 305 (1978) (inspection of business premises under the Occupational Safety and Health Act) or Camara v. Municipal Court, 387 US 523, 87 S Ct 1727, 18 L Ed 2d 930 (1967) (health or safety inspections of private residences), which are directed at finding evidence of compliance or noncompliance with governmental regulations. No such enforcement purpose is involved in such possible reasons for inventories as we have discussed.

Whenever police officers obtain custody of private property for reasons other than by consent or seizure under a *9warrant or incident to a lawful arrest or exigent circumstances, the first step is to determine the source of the authority for the custody. If the government agents had no authority to take custody of the property, then there can be no lawful intrusion into it. The inquiry ends there. Some examples will illustrate the point.

ORS 483.351 et seq, authorizes police officers to take custody of “abandoned” vehicles. The statute also authorizes a lien on the vehicle and its contents to pay storage and towing charges. The police may then dispose of both the vehicle and its contents. Because of the broad statutory authority conferred, a detailed inventory of the contents of the vehicle in preparation for its sale would be permitted. These sections specifically do not apply to “any criminal investigation.” ORS 483.365. For abandoned boats, see ORS 488.655 et seq.

Similarly, under ORS 133.663, if the possessory rights in items seized are disputed, the court may “impound” the items seized, give notice and hold a hearing to determine their ownership. Whenever the court “impounds” items seized pursuant to statutes such as this, a full inventory of their contents is permissible, subject to the conditions discussed in part B, below.

By contrast, where government officials are allowed only limited authority to take temporary control of personal property — such as to move an automobile after a traffic accident — the officers’ authority does not extend to conducting a general inventory of the automobile’s contents.4 However, if statutes, ordinances, or other laws provide that *10overparked cars be “impounded,” inventories of the contents of cars so impounded also may lawfully be authorized, including inspection and inventorying the contents of unlocked glove or trunk compartments and open containers as set forth in part II B, below. The justifications offered for inventories are important considerations whenever full custody of personal property is authorized.

B. If the vehicle is in lawful administrative custody, any inventory must be conducted pursuant to a properly authorized administrative program, designed and systematically administered so that the inventory involves no exercise of discretion by the law enforcement person directing or taking the inventory. See generally State v. Tourtillott, 289 Or 845, 860, 618 P2d 423 (1980); see also South Dakota v. Opperman, supra, 428 US at 383 (Powell, J., concurring).

If the evidence shows that the inventory deviated from the established policy or procedures of the particular law enforcement agency, the inventory should be deemed invalid. The scope of the inventory must be limited to that — an inventory. Objects found within the inventoried vehicle should be scrutinized only to the extent necessary to complete the inventory.5

The degree to which an inventorying officer may scrutinize the items uncovered is limited. See State v. Perry, 298 Or 21, 688 P2d 827 (1984), decided this day. See also State v. Keller, supra, where we held that police conducting an inventory of an automobile “pursuant to administrative requirements” (265 Or at 624) could not open a fishing tackle box which was secured with wire tied around it, but would be required to inventory only the container as “one fishing tackle box.” 265 Or at 626, 629. In Opperman, the police, when they *11inventoried the glove compartment, found in addition to marijuana, “miscellaneous papers” (a checkbook, an installment loan book, and a social security status card) which they removed without examination. The Opperman opinion indicates that a majority of the Supreme Court of the United States would not approve of examining such documents as a part of the routine vehicle inventory process. Justice Powell emphasized that approval of the inventory in that case “provides no general license for the police to examine all the contents of such automobiles.” South Dakota v. Opperman, supra, 428 US at 380 (Powell, J., concurring). See also 2 W. LaFave, Search and Seizure 580-81 (1978).

IV

From the briefs and the record provided in this case we cannot reach a conclusion whether this inventory is permitted by Article I, section 9, of the Oregon Constitution under the above analysis.

Apparently the parties and the court assumed that the vehicle was lawfully impounded. However, as a prerequisite to a lawful inventory, a determination as to the authority under which the police impounded the vehicle is necessary.

It is unclear whether this inventory was conducted pursuant to a properly authorized program designed and systematically administered to achieve the stated purpose. However, the trial judge made no such finding.6 There also is evidence that the officer was “looking for evidence of a crime.”7

Finally, it remains unclear whether this inventory was within the scope permissible under Article I, section 9, of the Oregon Constitution. The evidence was found in the glove compartment of defendant’s car. The contents of a glove box *12are within the permissible scope of an authorized inventory. However, there was some testimony as to the scrutinizing of a map and a newspaper that suggests the officer possibly exceeded the permissible scope of the noninvestigatory inventory in a “search” for evidence. Compare United States v. Turk, 526 F2d 654 (5th Cir) cert denied 429 US 823, 97 S Ct 74, 50 L Ed 2d 84 (1976) (none of valid objectives of inventory search require officers to play cassette tapes found in vehicle).

Therefore, this case is remanded to the trial court for further proceedings consistent with this opinion.

Remanded to the trial court.

Article I, section 9, of the Oregon Constitution provides:

“No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.”
The Fourth Amendment of the federal constitution provides:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The keys to the trunk were available. They had been left in the unlocked car. The officer opened the trunk and looked in but did not inventory or further investigate the trunk because he became concerned about the legality of going into a locked compartment.

Distinguishing characteristics in the case at bar are that the automobile was unlocked, the keys were under the front seat, and the vehicle was seized after an unsuccessful neighborhood search to find the car’s owner. The lawfulness of the impoundment of the automobile in this case is not challenged.

It has been held that a limited “search” of property is permissible even though the property was not impounded or in the custody of law enforcement officers at the time. See, e.g., US v. Miller, 589 F2d 1117, 1125 (1st Cir) cert denied 440 US 958, 99 S Ct 1499, 59 L Ed 2d 771 (1979) (where a boat of unknown origin had been abandoned at a mooring belonging to another person, fouled in its lines, and where the circumstances justified a reasonable fear of a drowning, the combination of “community caretaking functions” and possibly exigent circumstances amply justified intruding upon the limited privacy expectations surrounding the abandoned vessel in order to determine the boat’s ownership and the safety of its mariners); Evans v. State, 364 So 2d 93, 94 (Fla App 1978), cert denied 373 So 2d 457 (Fla 1979) (highway patrolman who observed driver pull her car off road and stop but was unable to gain her attention upon approaching vehicle although the officer observed that her eyes were open, was justified in gaining entry to car and examining driver’s pocketbook to inspect her license for identifying device which would delineate a medical disability that could account for driver’s condition before rescue unit which he summoned arrived).

“What is needed in the vehicle inventory context, then, as is true of many other types of regulatory searches, is not probable cause but rather a regularized set of procedures which adequately guard against arbitratriness.” 2 W. LaFave, Search and Seizure 576 (1978).

“A locally followed practice gives some assurance that a particular car was not singled out for special searching attention. Absent some such assurance, some special reason for the taking of safeguarding or security precautions that are not customarily taken should exist if the intrusion resulting from the taking of such precautions is to be rendered reasonable under the Fourth Amendment.” United States v. Hellman, 556 F2d 442, 444 (9th Cir 1977).

The inventorying officer testified that the Polk County Sheriffs policy is that “every vehicle that is towed into the Polk County impound lot or impound area will be inventoried. * * * My purpose, sole purpose, was to inventory the vehicle per instructions. * * * The point is, we are required by our department policy to make notes, accurate notes of all the items in the vehicle that we inventory in impound.”

If initial impoundment is valid under the rules stated in the text of this opinion, and if an inventory is conducted pursuant to and consistent with a properly authorized administrative program, that is, the inventory would be conducted in any event, the fact that the officer also looks for evidence of criminal activity would not invalidate the inventory. See State v. Tourtillott, 289 Or 845, 868, 618 P2d 423 (1980).