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).
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)