D.S.C.: Owner of vehicle showing at scene of search wanting to take the car voided the inventory

Where the owner of the vehicle showed up at the scene before the decision to inventory and tow the vehicle was made, the inventory was improper because she wanted the car and they refused to give it over [apparently because they were bound and determined to search it]. United States v. Derrick, 2012 U.S. Dist. LEXIS 153809 (D. S.C. October 26, 2012):

Because it finds that Ms. Stover was present at the time of McIlwain’s arrest and before the inventory search occurred, the Court must conclude that the inventory search in this case violated the Fourth Amendment. As explained above, police must have lawful custody of a vehicle before an inventory search is proper. Here, however, at the time they arrested the defendant, the police could have turned the vehicle over to its rightful owner rather than impounding it. Cf. United States v. Fort, 313 Fed. App’x 665 (4th Cir. 2009) (finding that police had lawful custody of vehicle and that inventory search was valid where police made the decision to have vehicle towed and to subject it to inventory search prior to the time defendant’s wife arrived at the scene). The governmental interests discussed above in preventing theft, forestalling claims, and protecting the police are not implicated where the owner of the car is present at the time of the defendant’s arrest. Indeed, Ms. Stover could have taken the Accord and the police would have had no responsibility for the property therein.

Moreover, the officers’ decision to impound the Accord and subject it to inventory violated Lancaster City Police Department regulations. Specifically, the Lancaster City Police Department’s policy regarding “traffic ancillary services” performed by police officers states that officers “may cause a vehicle to be towed” under one of several limited circumstances, including “[a]ny vehicle from which an officer makes an arrest and there is no responsible party to whom the arrestee can turn over the possession of the vehicle.” Def.’s Ex. 1, at p. 3. Then, “[w]henever a vehicle is towed, the inventory and impoundment record will be completed by an officer and processed through normal administrative channels as a permanent record.” Id. at p. 4. In other words, where a “responsible party,” such as the vehicle’s owner, is present, an officer does not have a basis for impounding the vehicle and subjecting it to inventory search. See Bertine, 479 U.S. at 375 (noting that decision to impound must be based on “standard criteria and on the basis of something other than suspicion of evidence of criminal activity”).

Based on the above, the Accord was not in the lawful custody of the officers at the time of the inventory search. Consequently, the inventory search violated the defendant’s rights under the Fourth Amendment.