FL2: State’s failure to prove policy for inventory was failure of proof on warrantless search

Inventory is an exception to the warrant requirement, so the state carries the burden of proof. Here, the state failed to prove the policy, a General Order, that permitted the inventory to show that it was not a subterfuge for a criminal search. Ross v. State, 2021 Fla. App. LEXIS 9038 (Fla. 2d DCA June 18, 2021):

As is clear from our case law, a law enforcement agency must show that it is operating under a standard of some sort—that is, a directive, a guidepost, a benchmark, a criteria—that informs and potentially curtails the exercise of an officer’s discretion before a law enforcement officer can impound a vehicle and conduct an inventory search. And since the inventory search is a kind of warrantless search, it is the State’s burden to put evidence of that standard before the court. See Badkey v. State, 336 So. 2d 711, 711 (Fla. 4th DCA 1976) (concluding that trial court erred in denying motion to suppress where “the State failed to meet its burden of proof in showing the constitutional validity of [the inventory] search”).

In the case at bar, the State failed to present any evidence that Deputy Hauschild was acting in accordance with any established governing standard when he decided to impound Mr. Ross’s car—or that such a standard even existed. And given the deputy’s admission that he intended to impound Mr. Ross’s car “no matter what,” it cannot be said that a standardized criteria guided his confiscation and subsequent search of Mr. Ross’s property. The facts of this case make the absence of a standard all the more glaring: an operable car was parked in the early afternoon in a parking space at a public park where, apparently, others had left cars overnight “all the time,” and the deputy impounding the car was unable to articulate any basis for his concern that “something” (whatever it might be) could happen if the car was left in the park while Mr. Ross was booked.