(concurring in part and dissenting in part).
I agree with the majority opinion that defendant had standing to raise the search and seizure issue.
Two matters, preliminary to the search and seizure question, are not expressly covered in the majority opinion. They are: (1) the officer had lawful possession of the car and (2) there was a search in the constitutional sense.
Defendant argues there was no lawful possession. His position seems to be that the officer could not be in lawful possession of the car unless a statute authorized the possession or the officer’s possession came about after a valid arrest. Here, the possession preceded the arrest. Admittedly, lawful possession can occur in both of the ways asserted by defendant but he cites no authority to the effect that those two ways are the only ways lawful possession can occur. In Godbee v. State, 224 So.2d 441 (Fla.App.1969) the car had been constructively abandoned.
Here, the facts are undisputed that the car rental agency from which the car had been obtained had asked the officer to impound the car because defendant’s possession was contrary to the terms of the rental agreement and the car had been rented subject to the conditions of the rental agreement. There was no evidence at the motion • hearing indicating defendant had any right to possess the car. The record presents no basis for holding the officer’s possession unlawful; the only evidence infers a lawful possession. On the basis of the showing made, I would hold the officer’s possession was lawful. The majority opinion does imply a lawful possession.
The State argues there was no “search.” I agree, under the facts, that there was no “search” in the sense of an exploratory investigation. State v. Blackwell, 76 N.M. 445, 415 P.2d 563 (1966). The constitutional provision concerning unreasonable searches is not limited to exploratory investigations; the constitutional provision pertains to “* * * all intrusions by agents of the public upon personal security. * * *” Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L.Ed.2d 889 (1968). See Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); compare State v. Slicker, 79 N.M. 677, 448 P. 2d 478 (Ct.App.1968). The constitutional provision against unreasonable searches governs an inventory search. In Re One 1965 Econoline, I.D. #E16JH702043, Ariz.L. EC-7887, 17 Ariz.App. 64, 495 P.2d 504 (1972); Mozzetti v. Superior Court of Sacramento County, 4 Cal.3d 699, 94 Cal.Rptr. 412, 484 P.2d 84 (1971); Kleinbart v. State, 2 Md.App. 183, 234 A.2d 288 (1967). The majority opinion implies a search in the constitutional sense, and I agree.
The search and seizure issue is based on the officer opening the trunk of the car and raising the lid of the footlocker. It was this entry which provided the probable cause for the search warrant. If this entry was constitutionally unreasonable, seizure of the marijuana pursuant to the search warrant was invalid. State v. Everitt, 80 N.M. 41, 450 P.2d 927 (Ct.App.1969).
The officer’s entry cannot be justified on any of the following grounds: (a) consent; (b) incident to arrest; (c) pursuant to a search warrant; (d) reasonable or probable cause, prior to entry, that the officer would find the instrumentality of a crime or evidence pertaining to a crime; Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, reh. denied, 400 U.S. 856, 91 S.Ct. 23, 27 L.Ed.2d 94 (1970); Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed. 2d 538 (1968); (e) the car was being impounded as evidence; Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730, reh. denied, 386 U.S. 988, 87 S.Ct. 1283, 18 L.Ed.2d 243 (1967); or (f) entry was in the context of a regulatory inspection system under the authority of a valid statute; United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972).
Thus, I agree with the majority as to the dispositive issue; it is whether the “inventory” of the contents of the car lawfully in the officer’s possession was valid. I disagree with the majority’s disposition of that issue. I would hold the inventory to be constitutionally valid under the circumstances of this case. The majority opinion does not discuss these circumstances, which are included in the following discussion.
While lawful custody of an automobile does not of itself dispense with constitutional requirements of searches thereafter made of it, “* * * the reason for and nature of the custody may constitutionally justify the .search. * * *” Cooper v. California, supra. Here, the reason for the custody was the lack of permission for defendant to have the rented car, the lack of a driver’s license and the rental agency’s request to impound the car and not release it to defendant. The nature of the custody was to hold the car for the car rental agency. The record shows the rental agency had “picked it up” but does not show when this was done.
In these circumstances, standard State Police procedure is to make a written inventory of all items in the car. The inventory includes a check for any damages to the vehicle and any items in the vehicle. The inventory includes items in the trunk of the car.
The inventory “* * * is for our protection and the protection of the driver and the vehicle.” “* * * We are responsible for anything we impound. Anything that’s missing we have to pay for it.”
Decisions of other states agree generally that a police inventory is reasonable, but Arizona and California limit the extent of the inventory. Mozzetti v. Superior Court of Sacramento County, supra, and In Re One 1965 Econoline, I.D. #E16JH702043, Ariz.L. EC-7887, supra, hold that the inventory is proper for “objects clearly visible without probing” but that it is unreasonable to inventory the contents of closed items such as suitcases or shaving satchels. Other states have upheld the reasonableness of inventorying the contents of closed items. In People v. Sullivan, 29 N.Y.2d 69, 323 N.Y.S.2d 945, 272 N.E.2d 464 (1971) a brief case was opened; in Heffley v. State, 83 Nev. 100, 423 P.2d 666 (1967) passports and registrations became visible when the interior of the car was examined; in People v. Robinson, 36 A.D.2d 375, 320 N.Y.S.2d 665 (1971) the trunk of the car was opened; in State v. Keller, — Or.App.-, 497 P.2d 868 (1972) a fishing tackle box was opened. The decisions generally have not been concerned with whether the items inventoried were in plain view or in a closed item; rather, the concern is with the right to inventory the car’s contents. Urquhart v. State, 261 So. 2d 535 (Fla.App.1971); St. Clair v. State, 1 Md.App. 605, 232 A.2d 565 (1967); Jackson v. State, 243 So.2d 396 (Miss.1970); State v. Criscola, 21 Utah 2d 272, 444 P.2d 517 (1968); Cabbler v. Commonwealth, 212 Va. 520, 184 S.E.2d 781 (1971), cert. denied, 405, U.S. 1073, 31 L.Ed.2d 807, 92 S.Ct. 1501 (1972); State v. Montague, 73 Wash.2d 381, 438 P.2d 571 (1968). Compare, however, Scott v. State, 86 Nev. 145, 465 P.2d 620 (1970).
Where the officer’s possession is lawful, and the interests involved are those of the officer and the driver, I am inclined to the view that entry into a vehicle for the purpose of inventorying its contents, and not for an exploratory search, is reasonable. See Kleinbart v. State, supra, and Heffley v. State, supra. I need not, however, consider such limited facts in this case.
Here, there is no evidence of a right to possession in defendant, the driver; there is evidence of a right to possession on the part of the car rental agency. The officer testified that if the owner of the car is found, “. . . we just lock it and make the wrecker responsible for any items that are missing.” He also testified: “If we know the owner when we impound it, we do not go into the vehicle at all. But in a case like this, when the car belongs to somebody else they ask us to search the car, inside and out, to put down everything that’s missing.”
This evidence is to the effect that the contents of the car were to be inventoried for the protection of the absent person who had the right to possession of the car. Thus, we have a three-way protection involved — the driver, the officer and the car rental agency. Protection of the rights of citizens, including their rights in property, is clearly public policy. See Cabbler v. Commonwealth, supra. The officer proceeded reasonably in this three-way situation of driver, officer and car rental agency, by ascertaining the contents of the car in his possession.
Defendant asserts my conclusion of reasonableness' is erroneous on two grounds. He claims this protection could be achieved by not opening closed items and he asserts the officer has no need for protection because he cannot be liable for missing items.
This contention follows the reasoning of Mozzetti v. Superior Court of Sacramento County, supra, with which I disagree. Mozzetti, supra, emphasizes that the officer has little chance of being held liable on the basis that he is an involuntary bailee. Whether or not there is legal liability, the officer’s testimony is undisputed that he has to pay for missing items. But even if the officer did not have to pay, it still is reasonable for the officer to know what is in his possession in the event the State should be held liable to the extent of its insurance coverage, see § 39-2-27.1, N.M.S. A. 1953 (2d Repl.Vol. 6).
Apart from the officer, the interest of defendant and the car rental agency in the car’s contents is to be protected. In providing that protection, in my opinion it is reasonable for the protector, the officer, to know what is being protected. Wouldn’t it be reasonable for the officer to know whether the car in his possession contained a dead body? See Judge Mann’s concurring opinion on rehearing in Urquhart v. State, supra.
Under the facts of this case, I would hold that the officer acted reasonably when, in inventorying the contents of a car in his lawful possession, he opened the trunk of the car and raised the lid of the footlocker; that these actions did not amount to an unreasonable search under the circumstances. I would affirm the conviction.