FL2: State “protective custody” doesn’t permit search incident; entry into jail here, however, made it valid

When defendant was taken into “protective custody” under state law as drug impaired, his backpack couldn’t be searched incident to arrest because it’s not an arrest. However, he ended up at the jail, and an inventory at the jail was proper, so the search is valid by inevitable discovery. White v. State, 2015 Fla. App. LEXIS 8765 (Fla. 2d DCA June 10, 2015):

We recognize that some jurisdictions have limited the permissive scope of an inventory search and accordingly suppressed evidence obtained when no arrest occurred and the defendant merely was taken into protective custody. See, e.g., People v. Chaves, 855 P.2d 852, 853-55 (Colo. 1993) (en banc) (explaining that because “civil detainees cannot be treated as arrestees,” the scope of an inventory search conducted pursuant to civil protective custody “is limited by the privacy interest of the detainee, and any closed containers must be set aside and a warrant obtained before they may be opened”); Lindsey v. State, 639 S.E.2d 584, 586-89, 282 Ga. App. 644 (Ga. Ct. App. 2006) (“[A] search of a civil detainee before being placed in a patrol car [and transported to jail], absent some valid reason for the officer to take custody of the clothing, container, or bag searched, [does not] come within the ambit of allowable inventory searches.”); State v. Harlow, 123 N.H. 547, 465 A.2d 1210, 1213-14 (N.H. 1983) (concluding that the search of a civil detainee’s wallet after he was transported to jail was not authorized by the state’s civil protective custody statute but explaining in dicta that the search of larger containers might be necessary to ensure safety in jail); State v. Lawrence, 58 Ore. App. 423, 648 P.2d 1332, 1336-37 (Or. Ct. App. 1982) (concluding that the inventory search of a civil detainee transported to jail in the absence of an emergency “should be less intrusive than that considered reasonable in criminal cases” and that “[o]nce a closed container is taken from the [detainee] during inventory … it is unreasonable to open the container and seize its contents without a warrant”).

Other jurisdictions, however, have declined to make any distinction, reasoning that the justification for an inventory search is the same whether the subject is a civil detainee or criminal arrestee. See, e.g., State v. Friend, 711 S.W.2d 508, 510-11 (Mo. 1986) (en banc) (“We find no substantial basis for holding that the reasons for a police inventory outlined by the United States Supreme Court … do not apply to property taken under police protection when the owner is civilly detained under police custody but not arrested.”); Cordell v. Weber, 2003 SD 143, 673 N.W.2d 49, 54-55 (S.D. 2003) (concluding that the removal of the civil detainee’s clothing as part of booking procedure was justified because the rationale for inventory searches applies equally to civil detainees and criminal arrestees).