D.Minn.: If the prosecution is relying on inventory, they better put the policy in evidence to prove it

On cross, the officer admitted the inventory search was a search for evidence. (“Q. And in your concern, your focus in searching that vehicle was, in large part, to find items that police could use in their investigation, true? A. That was correct.”) After the court suppressed the search, the government moved for reconsideration and this time offered the inventory search policy, which it failed to put into evidence the first time. The court didn’t like it, but considered it anyway, and still suppressed the search. If relying on inventory, the government has a duty to support it with the policy. Even on reconsideration, the motion to suppress is not set aside because government did not show the search was a true inventory. What and how it was seized was important here, and the search of the car was treated like an evidentiary search. United States v. Caskey, 2013 U.S. Dist. LEXIS 1167 (D. Minn. January 3, 2013):

6 The United States seems to argue that it was not required at the evidentiary hearing to define the inventory search policy or demonstrate Officer Bobo’s compliance with it. Instead, the United States argues, the limited issue before the Court and raised by Caskey was whether Officer Bobo had an “investigatory purpose” or motive in conducting the search. The Court disagrees. When Caskey argued there was an improper purpose for the search, the United States had the burden to produce evidence that the search was instead conducted pursuant to established inventory search procedures or pursuant to another exemption from the warrant requirement. See Kennedy, 427 F.3d at 1144 (“As with any warrantless search, the Government bears the burden of demonstrating the need for an exemption from the warrant requirement and that its conduct fell within the bounds of the exception.”). The United States could not meet its burden through a bald assertion that Officer Bobo complied with a largely undefined policy and thus did not have an improper purpose. Officer Bobo testified that his concern when searching the vehicle was in large part to find items that the police could use in their investigation, and he admitted that he gathered items of value only to the police. As will be further explained below, under these circumstances, the United States had the burden to prove that the gathering of evidence was conducted pursuant to a valid inventory search and not due to an investigatory purpose.

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7 Normally, an investigatory motive alone does not sour an inventory search. Rowland, 341 F.3d at 780. The Court notes, however, that the NBPD inventory search policy states that “examination of the contents of a motor vehicle pursuant to a criminal investigation or with the intent of discovering evidence of a crime is a search, not an administrative inventory” and is thus subject to an entirely separate policy. (United States Ex. 1 at 1, Aug. 15, 2012, Docket No. 77; see also id. at 3.) It is thus possible that Officer Bobo’s admission of an at least partially investigative intent might cause his search to fall outside of the NBPD inventory search policy. (See Tr. 20:4-15.) For the purposes of this Order, however, the Court will assume without deciding that the evidence of Officer Bobo’s investigatory motive does not render the inventory search policy inapplicable.

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The Court finds that the United States has not shown that Officer Bobo’s search fell under either the inventory search or plain view exceptions to the warrant requirement. First, the United States has not established that the requirements of the plain view exception are satisfied in the present case. Officer Bobo seized the majority, if not all, of the items from the vehicle because of their criminal nature, thus relying on the plain view exception and the inventory search policy’s requirement that items of evidentiary value be seized. Officer Bobo did not testify with specificity, however, how he was able to view each of the items he seized. See Beasley, 688 F.3d at 530. For example, the United States did not demonstrate that the Taco Bell cups and straws were in plain view because Officer Bobo provided no testimony about them.