NM: Backpack on def when he was arrested was subject to inventory even though he was separated from it when searched

Defendant’s backpack was on him when arrested, and it was still subject to police inventory for all the policies of inventory. State v. Davis, 2017 N.M. LEXIS 86 (Nov. 9, 2017), revg, 2016-NMCA-073, 387 P.3d 274 (posted here):

P1 This case concerns the inventory search exception to the warrant requirement. The Court of Appeals concluded that the inventory search that occurred in this case was invalid because Defendant Wesley Davis did not possess the backpack searched at the time of arrest as the backpack was not “on his person or in his physical possession ….” State v. Davis, 2016-NMCA-073, ¶¶ 1, 10-11, 387 P.3d 274. We disagree that possession in the inventory search context should be so narrowly construed. We embrace a broader definition of possession, conclude that Davis did possess the backpack at the time of arrest, and hold that the inventory search was valid. The Court of Appeals is reversed.

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P21 Boswell is clear: The propriety of an inventory search of any given object is not determined by examining where in relation to an arrestee the object was at the time of arrest; rather, the focus is on whether the object is made unsecure by the arrest. ¶¶ 13, 15. Thus, it makes no difference that Davis’s backpack was some short distance from him at the time of arrest. Nor does it matter that Davis removed the backpack from his person and placed it on the car in the carport before speaking to the deputy. Deputy Vasquez’s duty to secure Davis’s property did not end simply because Davis removed the backpack from his person. Police are rightly expected to protect and secure not only those items on an arrestee’s person or within the arrestee’s immediate control at the time of arrest, but any item belonging to the arrestee that is rendered unsecure by the arrest. See 3 Wayne R. La Fave et al., Search and Seizure: A Treatise on the Fourth Amendment § 5.5(b), at 297, 297 n.43 (5th ed. 2012) (stating that it would be “clearly improper for the police to simply leave” unattended at the scene of an arrest those objects belonging to an arrestee that are rendered unsecure by the arrest, and collecting cases in support of this assertion).

P22 The district court found that there was a risk that Davis’s backpack could be lost or stolen because Davis’s arrest precluded him from further controlling the backpack. We see no reason and have been given no reason to question this finding. In addition, we observe that “the scope of a permissible inventory search is broad …[,]” Shaw, 1993-NMCA-016, ¶ 11 (citing Illinois v. Lafayette, 462 U.S. 640, 648, 103 S. Ct. 2605, 77 L. Ed. 2d 65 (1983)), and that officers may exercise discretion in the course of deciding whether to conduct an inventory search or not. See Florida v. Wells, 495 U.S. 1, 4, 110 S. Ct. 1632, 109 L. Ed. 2d 1 (1990) (observing that, while the police “must not be allowed so much latitude that inventory searches are turned into a purposeful and general means of discovering evidence of crime,” the “exercise of judgment based on concerns related to the purposes of an inventory search does not violate the Fourth Amendment” (internal quotation marks and citation omitted)); cf. Bertine, 479 U.S. at 372 (observing that the Court’s inventory search cases accord “deference to police caretaking procedures designed to secure and protect vehicles and their contents within police custody”). This discretionary authority necessarily flows to determinations regarding whether some particular item is susceptible to theft or loss in the wake of an arrest. We conclude that Davis did possess the backpack at the time of arrest and, therefore, a reasonable nexus existed between Davis’s arrest and the seizure of the backpack.

b. Inventory search and private property

P23 The Court of Appeals determined that the inventory search in this case was invalid and was in part predicated on the fact that Deputy Vasquez seized the backpack from Davis’s private property. Davis, 2016-NMCA-073, ¶ 12. The Court stressed that “[a] defendant has a right to place his personal items on his private property and reasonably expect that law enforcement will not seize it without a warrant[,]” and concluded that “the government interests in the inventory search [do not] permit law enforcement to walk on [Davis's] property, enter his carport, and seize his backpack.” Id. We disagree. These broad pronouncements are inconsistent with the legal principles that govern here.

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