Lack of inventory policy was not fatal to an inventory search, but maybe not

With great reluctance, inviting the district court to rule otherwise, a USMJ rules that the lack of inventory policy was not fatal to an inventory search, but perhaps it should be. United States v. Biernat, 2008 U.S. Dist. LEXIS 45143 (W.D. Wis. June 4, 2008):

The government opposes the motion, claiming that even if the traffic stop was unlawful, there is sufficient attenuation to avoid suppression. For the reasons stated below, I am recommending this court deny Biernat’s motion to suppress. It is, however, a close question because of the Hurley Police Department’s inexplicable failure to enact and enforce a policy governing vehicle inventory searches. Indeed, the court might decide that the challenged search was simply too unstructured for this court to countenance.

. . .

We have reached question (3): Was the subsequent search of the car a proper inventory search? The short answer is “It’s a wobbler.” Inventory searches are an exception to the warrant and probable cause requirements of the Fourth Amendment and are lawful if they are conducted pursuant to standard police procedures aimed at protecting the owner’s property and protecting the police from the owner accusing them of having stolen, lost or damaged his property. United States v. Cherry, 436 F.3d 769, 772 (7th Cir. 2006). The policy should be in writing but standardized criteria and a well-honed department routine may be sufficient. United States v. Duguay, 93 F.3d 346, 351 (7th Cir. 1996). Although it is important for a court to determine if police followed standard procedure while conducting an inventory search, the lynchpin question remains the reasonableness of the inventory search and subsequent seizure of evidence. Cherry, 436 F.3d at 772-73. See also id. at 776-77 (Posner, J., dissenting):

An inventory search might not be authorized by a policy, but if the search conducted by the police was in fact a reasonable inventory search–maybe they searched the car because they feared being accused of stealing the owner’s property–there would be no basis for a constitutional objection.

After all, as the dissent points out in Cherry, “compliance with established procedures is merely a ruse antidote.” Id. at 777. The point of the inquiry is to ensure that the police do not employ inventory searches as a mechanism by which they may intentionally evade the requirement that they obtain a warrant or establish probable cause before searching an impounded vehicle.