IA adopts tighter inventory search standard under state const. and rejects SCOTUS cases

Iowa declines to follow SCOTUS cases on the Fourth Amendment in determining validity of inventory searches under the state constitution. The asserted justifications for inventory under the Fourth Amendment hold no weight on closer examination, and vehicle owners should get the option to try to avoid impoundment. The court surveys other states’ cases striking out on their own and finds their rationale better and follows them. State v. Ingram, 2018 Iowa Sup. LEXIS 77 (June 29, 2018):

Based on the above reasons—the minimal risk, the limited effectiveness of inventories, the availability of other equally effective but less intrusive options, and the limited exposure of gratuitous bailees—the State’s interest in protecting itself from false claims is at best insubstantial.

We now turn to an examination of the second justification of inventory searches, police safety. Where the driver or owner is separated from the vehicle, and the vehicle is securely impounded, there is little risk.

. . .

The remaining interest cited by the United States Supreme Court for warrantless inventory searches is the benign purpose of assisting the owner in the protection of valuables. See Opperman, 428 U.S. at 369-70, 96 S. Ct. 3097. According to this rationale, the police inventory the contents of a vehicle for the benefit of the owner or operator of the vehicle to protect the owner’s property. See id. Of course, if the risk of theft is at best insubstantial, the benefit to the owner is also at best insubstantial. Further, we doubt that many motorists would regard a thorough inventory search as something helpful. If the warrantless inventory search is really for the benefit of the owner or driver, law enforcement should not object to allowing an owner the option to opt out of the state’s beneficence. See, e.g., Virgil, 268 Cal. App. 2d at 132; Miller, 403 So. 2d at 1314; Fortune, 689 P.2d at 1203. Further, if the warrantless inventory search is for the benefit of the owner, there should be no difficulty with the notion that the owner or driver should have the option to make alternate arrangements to protect property in the vehicle or consent to the warrantless search. See Williams, 689 P.2d at 1071.

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5. Status of warrantless inventory searches under article I, section 8 of the Iowa Constitution. With respect to the decision to impound, there is merit to the notion that the police should explore alternative arrangements short of impoundment. This was our approach in Kuster, 353 N.W.2d 428. If the police goal is truly not investigative but to protect property and avoid false claims, the owner or driver of the vehicle should have the ability to opt for alternatives that do not interfere with public safety other than police impoundment. These options could include park-and-lock options on nearby streets or parking lots or calling a friend or third party to drive the vehicle away. Impoundment of a vehicle should be permitted only if these options have been adequately explored. This is the view endorsed by Professor LaFave. 3 LaFave, Search and Seizure § 7.3(c), at 820.

In addition, where impoundment is necessary, the next question is whether the police may conduct an inventory search of the vehicle and, if so, what is its scope. First, when impoundment is contemplated, law enforcement should ask the driver whether there is any property in the vehicle the driver wishes to retain. If so, the driver should be allowed to retrieve it. Second, with respect to property left behind, law enforcement may ask the driver whether there is anything of value requiring safekeeping and make a record of the response in order to protect law enforcement from a later claim of theft of valuables.

Absent specific consent to search them, however, police must inventory closed containers left behind in the vehicle as a unit, an approach that vindicates the policies of protecting property and avoiding false claims. See Hite, 338 P.3d at 809; Wisdom, 349 P.3d at 965. It is important to note, however, that to the extent that consent is a factor, it should not be pursuant to an open-ended, multifactored Schneckcloth test. See 412 U.S. at 227, 93 S. Ct. at 2047-48. Such an approach should be anathema to those who favor “bright line” approaches. Instead, any consent must follow Zerbst to be knowing and voluntary. 304 U.S. at 464, 58 S. Ct. at 1023. Specifically, the police should advise the owner or operator of the options to impoundment; personal items may be retrieved from the vehicle; and if the vehicle is impounded, containers found within the vehicle will not be opened but stored for safekeeping as a unit unless the owner or operator directs otherwise.

None of these requirements for warrantless inventory search and seizure occurred in this case. Even if it could be argued that in light of the registration problems, the police were entitled to seize the car, the scope of the search, however, which included a search of the black bag—a closed container—was impermissible under the principles outlined above absent a knowing and voluntary consent. As a result, the motion to suppress in this case should have been granted because the warrantless inventory search violated article I, section 8 of the Iowa Constitution.

We note that our holding in this case does not mean that a warrantless impoundment of a vehicle is never appropriate. The state may develop a policy on impoundment and inventory searches consistent with the constitutional requirements embraced in this opinion. For example, a policy might provide that the police may impound a vehicle when the motorist agrees to such impoundment and has had an opportunity to retrieve his or her belongings. And a policy might provide for impoundment of vehicles when the motorist is not present to give consent. Under these circumstances, law enforcement may implement a policy that allows officers to properly secure closed containers found in plain view at the police station. The impoundment and search in this case, however, was outside the bounds of any constitutionally permissible local impoundment and inventory policy.

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