VA: Purported inventory was clearly an investigative search and suppressed

The purported inventory here (shown on video) was an investigative search, and the officer made no effort to comply with the inventory policy, noting nothing and just rummaging around. The paperwork also showed it was “incident to arrest.” Inevitable discovery doesn’t save this search either. This is what the exclusionary rule was intended for. Knight v. Commonwealth, 2020 Va. App. LEXIS 102 (Apr. 7, 2020):

Moreover, the trial court had the “opportunity to look the witnesses [officers] in the eye and weigh their credibility,” Malbrough v. Commonwealth, 275 Va. 163, 171 (2008), as they testified regarding their motivation to search. Each tried to explain the conversations between them, preserved on the body camera videos, regarding how to accomplish a search. Each tried to explain why they listed the car search in their report summaries as “incident to arrest” rather than as an inventory search incident to towing. Officer Santare testified as to his reasons for filling out the form as “officer tow” of a “prisoner vehicle” rather than tow of a “traffic hazard.” As with any other witness, determining the credibility and weight of an officer’s testimony often “involve[s] consideration of nuances such as tone of voice, facial expression, gestures and body language seldom discernable from a printed record.” Id. Because it is supported by evidence in the record, we accept the trial court’s finding that “the inventory search was motivated by a desire to investigate.”

Furthermore, the search was not “conducted pursuant to standard police procedures” Cantrell, 65 Va. App. at 60. The trial court’s finding of an improper investigatory motive in and of itself renders the search contrary to the NPD inventory policy, which expressly states that an inventory “will not be used as a substitute for a search warrant.” The “inventory procedure” section of the NPD inventory policy requires a “PD Form 924 [to] be prepared when an inventory is conducted.” The form, however, was not prepared at the time the search was conducted and was not prepared by the officer who conducted the search. Most of the items in the car were not listed on the inventory, including a generator in the trunk, large cardboard packages, auto parts, and a milk crate of smaller containers. Likewise, neither the backpack nor the gun was inventoried as either “remaining in the car” or “vouchered property sent to Property and Evidence.” Failure to inventory the gun was a violation of an explicit requirement of the NPD inventory policy. The vehicle owner’s signature line and the check boxes on the back of the form were not completed as required by the instructions on the back of the PD Form 924. Thus, there was no indication Knight was given an option as to the disposition of his car. In sum, the officers’ attempt to comply with established procedures was at best “slipshod.”

Accordingly, the search of Knight’s car does not fall under the community caretaker inventory exception because regardless of whether it was lawfully impounded, the search was not “conducted pursuant to standard police procedures” and was a “pretextual surrogate for an improper investigatory motive.” See Cantrell, 65 Va. App. at 60. As a result, we agree with the trial court that this was an investigatory search and not one conducted pursuant to the Norfolk
Police Department policy.

. . .

In summary, the record before the trial court does not show that the gun in this case would have inevitably been discovered if the officers had not had an investigatory desire to search the car. Although the gun could have been subsequently found, it would require speculation to conclude it inevitably would have been found. See Carlson, 69 Va. App. at 765 (“inevitable discovery involves no speculative elements”). Having found the search of Knight’s car was unlawful, the trial court erred in relying on the inevitable discovery exception to deny Knight’s motion to suppress the evidence.

Lastly, we observe that “[t]he exclusionary rule is a self-limiting, ‘prudential’ doctrine whose ‘sole purpose … is to deter future Fourth Amendment violations.'” Collins v. Commonwealth, 297 Va. 207, 214 (2019) (quoting Davis v. United States, 564 U.S. 229, 236-37 (2011)). When, as here, police officers deliberately attempt to subvert the protections afforded by the Fourth Amendment, we can think of no more appropriate action to deter future officer misconduct than suppression of the unlawfully discovered evidence.

When, as here, police officers deliberately attempt to subvert the protections afforded by the Fourth Amendment, we can think of no more appropriate action to deter future officer misconduct than suppression of the unlawfully discovered evidence.