Officer’s failure to follow inventory policy here created the strong inference the inventory was really a pretext for a criminal search, and the inventory is suppressed. United States v. Davis, 2018 U.S. Dist. LEXIS 137083 (N.D. Iowa Aug. 14, 2018) (Judge Bennett):
Sgt. Kober did not strictly comply with those “standardized police procedures,” however. See id. (the second requirement is that the officer’s search “must comply with [those] ‘standardized police procedures'” (citation omitted)). First, at the hearing, Sgt. Kober agreed that the ISP impoundment procedure requires a detailed or complete inventory, on a vehicle towing and impound report (VTIR), of “all property in the vehicle including [a] list [of] all contents of each container in the vehicle.” Id. at 19:25-20:3. He admitted, however, that he did not list “all items” found in the SUV, but only “[i]tems that I thought were of value,” and that he did “[n]ot generally” list all incriminating and non-incriminating evidence. Id. at 21:7-15. This is plainly not as egregious a departure from the required detail of the itemization as the one in Taylor, where the officers had listed hundreds of valuable tools in the defendant’s truck simply as “misc. tools”—and may even reflect a certain systemic laxity in compliance with the Policy—but it does give rise to some inference that the search was investigatory, not really for purposes of an inventory. Taylor, 636 F.3d at 464-65.
What provides a stronger inference of pretext arising from non-compliance with an applicable policy or procedure is that I cannot find that the ISP Abandoned/Towed Vehicle Policy authorized impoundment and an inventory search in the circumstances presented, here. That Policy authorizes impoundment, inter alia, where “[a]n officer has reason to believe [vehicles] are wrongfully possessed by the person having control of such vehicles.” Plaintiff’s Ex. 1 at 2 (Policy IV.A.2.). Sgt. Kober’s (and the prosecution’s) contention that the SUV was “wrongfully possessed,” because Pope and Davis were not authorized drivers on the rental agreement, is unavailing. First, I agree with Davis that the more reasonable reading of “wrongfully possessed” is not just “possessed in violation of a rental agreement,” but illegally possessed. Second, although it was decided after the incident at issue, here, the Supreme Court’s decision in Byrd suggests that there is a clear distinction between possession of a rental vehicle that is not “authorized” by the rental agreement and possession that is sufficiently “wrongful” to warrant depriving the driver of possession of the rental vehicle. Specifically, the Court held “that the mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy.” Byrd, 138 U.S. at 1531. The Court also recognized that there might be “countless innocuous reasons why an unauthorized driver might get behind the wheel of a rental car and drive it,” and, although an unauthorized driver might be a serious breach of the rental agreement, it had no bearing, standing alone, on expectations of privacy in the rental car. Id. at 1529.
Furthermore, Sgt. Kober made no attempt to investigate Pope’s and Davis’s claim that Cari Rigdon, the renter, had given them permission to use the SUV. Rigdon’s permission would have established a second bailment under Georgia law, which constituted lawful possession of the SUV—and also established related privacy and property rights limiting Fourth Amendment searches and seizures. In Hall v. State, 477 S.E.2d 364 (Ga. Ct. App. 1996), the Georgia Court of Appeals held that a driver’s use of a rental vehicle with the renter’s permission, even though he was not listed as an authorized driver on the rental agreement, “created a bailment,” so that the driver had “standing to complain of a search,” but that standing “extended only so long as he was in possession of the car.” 477 S.E.2d at 366. Here, Pope and Davis claimed to have the renter’s permission and they retained possession of the SUV. Thus, their standing as second bailees might have established their standing to challenge the search, but certainly would have established their standing as lawful possessors of the SUV. Sgt. Kober unreasonably failed to make any effort to determine whether Pope and Davis had the renter’s permission to drive the rental SUV before deciding that their possession of the rental SUV was “wrongful.”
. . .
There is a further inference that the intent of the search was investigatory, from the start, because of Sgt. Kober’s conspicuous omission from his report of any mention that he told Jake that “some suspicious activity [was] going on,” and inclusion of only “Sgt. Kober advised [Jake] they were speeding” in response to Jake’s question about why he had stopped the SUV. Sgt. Kober’s Report at 2. Finally, at the hearing, Sgt. Kober actually admitted that his purpose was an investigatory search, not an inventory one, because he admitted on cross-examination, “Yeah, I wanted to search the car or inventory the car,” Transcript at 33:12-16, and he admitted to me that, if Jake had not authorized him to tow the vehicle, he “would have had to explore other options,” id. at 53:23-54:4, and that he “wouldn’t have let them go,” id. at 54:10-13. Indeed, Sgt. Kober moved the occupants from the SUV to Trooper Farver’s cruiser with the promise of a ride to Onawa shortly, but never offered to call them a taxi or anything else. Transcript at 34:12-35:9.
I conclude that the inventory search, here, was a pretext for a search the sole purpose of which was to investigate crime. Bell, 804 F.3d at 1241.
Thus, Sgt. Kober’s conclusion that the “wrongful possession” provision of the ISP Abandoned/Towed Vehicle Policy authorized impoundment and an inventory search was unreasonable and did not comply with that Policy.
