M.D.Ga.: Standardized procedure for inventory not shown, and it is suppressed

The government failed to prove a standardized inventory procedure in the local police department. And, the inventory appeared to be an investigative search, not a legitimate inventory, so it is suppressed. United States v. Dennis, 2018 U.S. Dist. LEXIS 99472 (M.D. Ga. June 14, 2018):

It cannot be left wholly to a law enforcement’s discretion in determining whether to open a closed container during an inventory search. Wells, 495 U.S. at 4. Although, again, a police officer is allowed some discretion, including “sufficient latitude to determine whether a particular container should or should not be opened in light of the nature of the search and characteristics of the container itself,” the Government must produce evidence of a standardized policy or routine that guided the officer’s decision. Id. And the burden is on the Government to provide evidence of that policy so that the Court can determine if the search was conducted in accordance with that policy or whether, if the officer exercised discretion to deviate from that policy, any deviation from the policy was reasonable under the facts and circumstances. See Wells, 495 U.S. at 4-5 (ruling that, absent an inventory policy, the search at issue “was not sufficiently regulated to satisfy the Fourth Amendment and that [evidence found therefrom] was properly suppressed”).

Thus, whether the Government has proven that the unidentified officer properly opened the cigarette box depends on whether he acted according to standardized criteria or established routine or, if he used his discretion to veer from that policy, whether it was reasonable to do so. See United States Khoury, 901 F.2d 948, 958 (11th Cir. 1990) (ruling it was error to deny a motion to suppress evidence from an inventory search where the Government provided no evidence “that the inventory search followed a standardized procedure pursuant to regulatory strictures” despite the investigating officer’s assertion that “the search was performed as a matter of course when a vehicle was impounded and the investigating officer was not at liberty to decline to inventory the contents”) ruling modified on other grounds by United States v. Khoury, 910 F.2d 713 (11th Cir. 1990).

Here, there is no evidence of the inventory policy other than Prosser’s very general description, and, in any event, there is no evidence the unidentified officer knew what that policy was. In short, the Court simply has no evidence that would allow it to conclude that when the unidentified officer “further investigat[ed]” the crumpled cigarette box he was acting within the scope of or was guided by the Georgia State Patrol’s standard procedures. On the contrary, the scant available evidence of the standard procedures suggests that the officer’s “further investigation” went beyond simply listing items for safekeeping. In fact, the evidence suggests that Prosser found the crushed cigarette box to be of no particular significance in his inventory of the vehicle and that is the reason he simply placed it on the console. The further investigation by the unidentified officer was just that—a further investigation beyond the scope of an inventory search, as described by Prosser, that led to the discovery of the drugs. Perhaps there was a legitimate reason for the unidentified officer to open up a crumpled cigarette box when Prosser had not, but there is no evidence of what that reason may be.

The Government has not met its burden. Accordingly, the evidence seized from Dennis’s vehicle during the January 20, 2016 inventory of that vehicle must be suppressed.