VA: Officer’s admissions showed inventory was pretext; CA8: inventory not pretext

The evidence showed the inventory search was pretextual by the officer’s admissions at the suppression hearing. The rest of what happened was instructive, but it didn’t show pretext per se. Cantrell v. Commonwealth, 2015 Va. App. LEXIS 228 (July 28, 2015):

C. Pretext for Improper Investigatory Motive

Cantrell also argues that the search was merely pretext for an improper investigatory search. We also agree with his argument in this regard. While it is true that “inventory searches are not ‘unreasonable’ within the meaning of the Fourth Amendment … the inventory exception does not apply when the inventory is merely ‘a pretext concealing an investigatory police motive.” Reese, 220 Va. at 1039, 265 S.E.2d at 749 (quoting Opperman, 428 U.S. at 376). First, as proof of investigatory intent, Cantrell points to Officer McGhee’s statement that when conducting an inventory search, he looks for contraband. Officer McGhee testified that “[b]ased on his training and experience,” his “standard procedure” was to check for contraband and hazards during an inventory search and to search for any valuables that could “come up missing from the vehicle.” Despite the fact that these purported reasons reference some of the underlying principles of the community caretaker’s exception, when asked specifically to clarify if contraband was one of the things Officer McGhee was looking for during the inventory search, he responded, “[c]ontraband is one of the things I’m looking for.” This glaring admission proves that Officer McGhee’s search of Cantrell’s vehicle was not for the benign purposes underlying the community caretaker exception; instead, one of his reasons for performing the inventory search was to improperly search for contraband and other evidence of crime.

Cantrell next contends that the fact that there was no time limit on when the inventory search was to be conducted after the impoundment of the vehicle is further evidence of Officer McGhee’s investigative intent. It is well established that “[o]bjective reasonableness remains the linchpin of determining the validity of action taken under the community caretaker doctrine. Moreover, the reasonableness of a search depends on the facts and circumstances of each case.” King, 39 Va. App. at 312, 572 S.E.2d at 521 (citations omitted). In this case, the officer’s decision to tow Cantrell’s truck to the police station and store it in the open bay gym overnight was reasonable under the circumstances. After Cantrell’s arrest for DUI, his blue Chevy pickup truck was towed “straight from the scene to the police department.” Because Cantrell had wood furrier strips and potentially valuable tools in the back of the vehicle, the truck was stored in the department’s open bay gym, instead of the uncovered lot, to protect Cantrell’s property. Officer McGhee conducted the inventory search of Cantrell’s truck the next morning because, by the time he finished processing Cantrell’s DUI, McGhee’s shift was complete. The slight delay in conducting the inventory search was reasonable in light of the circumstances and does not suggest bad faith or improper investigative intent on the part of Officer McGhee. See also Murphy v. United States, 552 F.3d 405, 412-13 (4th Cir. 2009) (holding officer’s decision to complete the inventory search after the vehicle was towed to the sheriff’s department was “entirely reasonable under the circumstances” given the traffic stop occurred in the early morning hours along a busy highway).

Cantrell also claims that the incomplete inventory list Officer McGhee prepared on notebook paper suggests the inventory search was merely pretext. We also find this argument is without merit. When Officer McGhee conducted the inventory search of Cantrell’s truck the next day, he noted any potentially valuable items and contraband on a sheet of notebook paper that was added to the case file. Given that “the interior [of the truck] had a lot of garbage,” Officer McGhee did not document every single item because doing so would be impractical. The Fourth Circuit has held “[a]ny omissions from the inventory list created from the search of [the defendant’s] car were not sufficient to create an inference of bad faith on the part of police.” United States v. Stanley, 4 F. App’x 148, 150 (4th Cir. 2001).

Therefore, while the timing of the inventory search and the incomplete inventory list do not establish that the search here was pretextual, Officer McGhee’s admission that searching for contraband was one of the purposes for performing the inventory search clearly establishes that the inventory search of Cantrell’s vehicle was conducted with an improper investigatory motive in violation of the United States Supreme Court’s holding in Wells and this Court’s holding in Williams.

Defendant was stopped on a highway for a traffic offense and he smelled of marijuana, so the officer got him out and ultimately arrested him. The officer was within his discretion to tow the vehicle and make an inventory rather than leave it on the highway. The way the inventory was written up didn’t make it pretextual. United States v. Harris, 2015 U.S. App. LEXIS 13171 (8th Cir. July 29, 2015).

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