CA9: Search of car could not be sustained as inventory since there was an admitted-evidence gathering motive

The inventory here was to conduct a criminal search of the car, and it is suppressed. Officers timed the arrest when defendant was in the car [allegedly] to minimize safety concerns. They admittedly were searching for criminal evidence, and not for a community caretaking function. United States v. Johnson, 2018 U.S. App. LEXIS 12464 (9th Cir. May 14, 2018) (with two concurring that prior case law binds the outcome, but the prior case should be reconsidered):

Under our circuit’s law, a suspicionless inventory search does not permit officers to search or to seize items simply because they believe the items might be of evidentiary value. As explained above, the purpose of such a search must be unrelated to criminal investigation; it must function instead to secure and to protect an arrestee’s property (and likewise to protect the police department against fraudulent claims of lost or stolen property). See Wells, 495 U.S. at 4; Orozco, 858 F.3d at 1210-13; Hellman, 556 F.2d at 443-44; see also State v. Lovaina-Burmudez, 303 P.3d 988, 991-95 (Or. Ct. App. 2013) (PPB inventory policy does not permit officers to seize items as evidence “for prosecution, rather than [as] personal property to be inventoried and secured for defendant”). Thus, the officers’ statements directly admitting that they searched and seized items from Johnson’s car specifically to gather evidence of a suspected crime (and not to further such permissible caretaking motives) are “sufficient to conclude that the warrantless search of the car was unreasonable.” Hellman, 556 F.2d at 444; see also Orozco, 858 F.3d at 1213 (“[W]e have found pretext where the police officers admitted that their subjective purpose was to find evidence of crime.”). In the face of such evidence, it is clear to us that the officers’ decision to seize the money, bags, and cellphones from Johnson and his car would not have occurred without an improper motivation to gather evidence of crime.

In light of our decision in Orozco, we conclude that the officers’ search and seizure of such evidence cannot be justified under the inventory-search doctrine. See Orozco, 858 F.3d at 1212-16. Because the government has not offered any justification for the seizure of such property other than the inventory-search doctrine, we conclude that the district court erred in denying Johnson’s motion to suppress. The evidence gathered from Johnson and his vehicle was inadmissible. See, e.g., United States v. Feldman, 788 F.2d 544, 554 (9th Cir. 1986) (evidence obtained from invalid inventory search requires suppression).