IN: Failure to follow the inventory procedures and stopping the inventory when contraband was found still didn’t make the inventory pretextual

The officer’s failure to follow the inventory procedures and stopping the inventory when contraband was found still didn’t make the inventory pretextual. Whitley v. State, 2015 Ind. App. LEXIS 739 (Dec. 7, 2015):

P31 Further, Officer Lantzer testified that although he was aware that the IMPD Order required officers to list the items found in an inventory search in the officer’s personal notebook, his general practice is to list the items on the tow slip. Tr. p. 17. However, Officer Lantzer did not list any items on the tow slip in this case.

P32 The circumstances in this case present more than a minor deviation from IMPD’s General Order 7.3 on Towing and Impounding Vehicles.2 Officer Lantzer was familiar with IMPD’s policy for inventorying the contents of an impounded vehicle and in accordance with that policy, he asked Officer Huddleston to perform an inventory search. Yet, the officers failed to complete an accurate inventory of the truck’s contents, and Officer Lantzer listed only certain items found in the truck in the probable cause affidavit. It is apparent that after the Officer Huddleston found the contraband in the “decorative box,” he ceased inventorying the remaining contents of the truck.

P33 However, our supreme court has stated that “so that as long as the impoundment is pursuant to the community caretaking function and is not a mere subterfuge for investigation, the coexistence of investigatory and caretaking motives is permissible.” Fair, 627 N.E.2d at 436 n.7. See also Moore v. State, 637 N.E.2d 816, 820 (Ind. Ct. App. 2004) (holding that the fact that an officer’s suspicion arose during the course of an inventory search did not render the search pretexual), trans. denied.

P34 Officer Lantzer’s decision to impound the truck was unquestionably reasonable. No evidence suggests that when Officer Huddleston began the search at Officer Lantzer’s request that he was looking for evidence of a crime. See Colorado v. Bertine, 479 U.S. 367, 372, 107 S. Ct. 738, 93 L. Ed. 2d 739 (1987) (observing “there was no showing that the police, who were following standardized procedures, acted in bad faith or for the sole purpose of investigation” and holding that evidence obtained during an inventory search was admissible). The State is also fortunate that the photographs taken of the interior of the truck by the evidence technician provided a photographic record of its contents. For all of these reasons, we conclude that Officers Huddleston’s and Lantzer’s failure to list all items found in the truck in the officer’s personal notebook as required by IMPD policy, did not, in itself, render the search pretextual, and therefore, the search was reasonable under the Fourth Amendment.