Autran v. State

887 S.W.2d 31, 1994 WL 511427

• Court: Court of Criminal Appeals of Texas
• Decided: September 21, 1994
• Docket: 869-92
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

BAIRD, Judge.

Appellant was convicted of possession of a controlled substance, namely cocaine. Tex. Health & Safety Code Ann. § 481.115. The jury assessed punishment at twenty years confinement and a $10,000 fine. Tex.Penal Code Ann. § 12.33. The Court of Appeals affirmed. Autran v. State, 830 S.W.2d 807 (Tex.App.—Beaumont 1992). We granted appellant’s petition for discretionary review to determine whether the Texas Constitution provides greater protection than the United States Constitution in the context of inventories. For the following reasons, we answer that question in the affirmative and reverse the judgment of the Court of Appeals.

I.

THE FACTS

On October 2, 1989, at approximately 1:45 a.m. Deputy David Bailey of the Orange County Sheriffs Department stopped appellant on Highway 12 in Vidor for failure to drive within a single lane. See, Tex.Rev.Civ. Stat.Ann. art. 6701d, § 60(a). Appellant was accompanied by his adult son. Appellant and his son stated they had been to Houston to film a professional football game for a Miami, Florida television station and tendered press passes issued by the Metro-Dade Police Department. Bailey testified the press passes had expired. Appellant also presented a Florida driver’s license, displaying a Miami address, and an Illinois vehicle registration form. Appellant stated he had purchased the vehicle within the previous five months but the registration indicated appellant purchased the vehicle approximately eighteen months prior to the stop.

With appellant’s permission, Bailey looked inside the vehicle but found nothing suspicious. Bailey then requested permission to look into the trunk. Appellant stated, “no problem,” and opened the trunk. Inside the trunk was a large ice chest, a cardboard box, a shopping bag, and two suitcases. Bailey attempted to open the ice chest but was interrupted when appellant attempted to close the trunk. Bailey arrested appellant for failure to “drive as nearly as practical entirely within a single lane,” Tex.Rev.Civ. StatAnn. art. 6701d, § 60(a), and appellant’s son for public intoxication, Tex.Penal Code Ann. § 42.08.

Following the established policy of the Orange County Sheriffs Department, Bailey and other officers began to inventory the vehicle. Opening the ice chest, cardboard box, and shopping bag, the officers found a large sum of cash. Due to the time and location, the inventory was discontinued and appellant’s vehicle was towed to the Orange County Sheriffs Department where the inventory was continued and the cash removed to a secure location. The cash was covered with a white, powdery substance subsequently determined to be cocaine. Because the initial inventory was conducted before daylight, officers inventoried the vehicle again later that morning to verify the existence and location of each item inventoried. During this final inventory officers discovered cocaine in a closed plastic key box located under the driver’s seat.

Appellant moved to suppress all tangible evidence seized from the vehicle, contending the evidence was seized in violation of the Fourth Amendment of the United States Constitution and art. I, § 9 of the Texas Constitution. The trial judge denied the motion.

The Court of Appeals affirmed, holding officers may search and inventory any container found in a vehicle as a result of an inventory so long as the officers follow established departmental procedures. Autran, 830 S.W.2d at 812-16. Finding the Orange County Sheriffs Department inventory procedures were clearly defined and followed, the Court of Appeals held neither the Fourth Amendment nor the Texas Constitution were violated. Id. at 815-16.

Appellant contends the inventory of the closed containers within the trunk and the plastic key box within the passenger compartment of his vehicle were prohibited under art. I, § 9 of the Texas Constitution and, therefore, the Court of Appeals erred in concluding the trial judge correctly denied appellant’s motion to suppress the fruits of that illegal search.¹ The State responds that the cocaine was discovered during a valid inventory.

It is axiomatic that the Texas Constitution can provide greater protection than the Federal Constitution. It has been said that the United States Constitution provides the floor for our Constitutional rights while the various State constitutions provide the ceiling. Heitman v. State, 815 S.W.2d 681, 690 (Tex.Cr.App.1991). Therefore, in order to determine whether the Texas Constitution provides greater protection than the United States Constitution in the context of inventories, we must first determine what protection is provided by the Fourth Amendment.

II.

UNITED STATES CONSTITUTION

The Fourth Amendment of the United States Constitution provides protection from unreasonable searches and seizures. A warrantless search is presumptively unreasonable. Horton v. California, 496 U.S. 128, 133 and n. 4, 110 S.Ct. 2301, 2306 and n. 4, 110 L.Ed.2d 112 (1990); and, Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). However, an inventory has long been recognized as a valid exception to the warrant requirement of the Fourth Amendment. See, Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983); Evers v. State, 576 S.W.2d 46 (Tex.Cr.App.1978); and, Benavides v. State, 600 S.W.2d 809 (Tex.Cr.App.1980). There is no requirement that an officer obtain a search warrant to conduct an inventory if the inventory is part of a bona fide “routine administrative caretaMng function” of the police. United States v. Skillern, 947 F.2d 1268, 1275 (5th Cir.1991); and, Evers v. State, 576 S.W.2d 46, 50 (Tex.Cr.App.1978). Inventories serve three purposes: (1) to protect the owner’s property while it is in police custody; (2) to protect the police against claims or disputes over lost or stolen property; and, (3) to protect the police or public from potential danger. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). The Fourth Amendment requires only that an inventory not be a “ruse for a general rummaging in order to discover incriminating evidence.” Florida v. Wells, 495 U.S. 1, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990); United States v. Walker, 931 F.2d 1066, 1068 (5th Cir.1991). To prevent inventories from becoming a general rummaging, the Supreme Court encourages ‘“[a] single familiar standard ... to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront.’ ” Lafayette, 462 U.S. at 648, 103 S.Ct. at 2610-11 (quoting New York v. Belton, 453 U.S. 454, 458, 101 S.Ct. 2860, 2863, 69 L.Ed.2d 768 (1981)). “The individual police officer must not be allowed so much latitude that inventory searches are turned into ‘a purposeful and general means of discovering crime.’ ” Wells, 495 U.S. at 4, 110 S.Ct. at 1635 (quoting, Colorado v. Bertine, 479 U.S. 367, 376, 107 S.Ct. 738, 744, 93 L.Ed.2d 739 (1987, Blackman, J., concurring)). Thus, inventories conducted pursuant to an established departmental policy have generally been constitutional. Opperman, supra.

In Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987), the defendant was arrested for driving while intoxicated. During an inventory of Bertine’s vehicle, officers opened a closed backpack. Within the backpack,

... the officer observed a nylon bag containing metal canisters. Opening the canisters, the officer discovered they contained cocaine, methaqualone tablets, cocaine paraphernalia and $700 in cash. In an outside zippered pouch of the backpack, he also found $210 in cash in a sealed envelope.

Id., 479 U.S. at B69, 107 S.Ct. at 740. Ber-tine moved to suppress the evidence discovered during the inventory of his backpack. The Supreme Court found the inventories of the backpack and closed containers were reasonable under the Fourth Amendment:

In the present case ... there was no showing that the police, who were following standardized procedures, acted in bad faith or for the sole purpose of investigation ... [T]he police were potentially responsible for the property taken into their custody. By securing the property, the police protected the property from unauthorized interference. Knowledge of the precise nature of the property helped guard against claims of theft, vandalism or negligence. Such knowledge also helped to avert any danger to police or others that may have been posed by the property.

Id., 479 U.S. at 372-373,107 S.Ct. at 741-742. The Court specifically rejected Bertine’s contention that other reasonable, less intrusive, alternatives were available to the officers, holding the Fourth Amendment does not require officers to resort to a less intrusive alternative. Id., 479 U.S. at 373-374, 107 S.Ct. at 742.

In Florida v. Wells, 495 U.S. 1, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990), Wells was arrested for driving while intoxicated and his vehicle was impounded. Officers received Wells’ permission to open the trunk of the vehicle and the inventory of the vehicle revealed two marihuana cigarette butts in the ashtray and a locked suitcase in the trunk. Forcing the locks on the suitcase, officers discovered a garbage bag containing a considerable amount of marihuana. Id., 495 U.S. at 2,110 S.Ct. at 1634.

Wells moved to suppress the marihuana found in the suitcase, contending its seizure violated the Fourth Amendment. The trial judge denied the motion and the Supreme Court of Florida reversed. State v. Wells, 539 So.2d 464, 469 (1989). The Florida Court reasoned that under Bertine,

[i]n the absence of a policy specifically requiring the opening of closed containers found during a legitimate inventory search, Bertine prohibits us from countenancing the procedure followed in this instance.

Id., 539 So.2d at 469.

The United States Supreme Court rejected the Florida Supreme Court’s holding that, under the Fourth Amendment, there must be a specific departmental policy requiring closed containers to be opened. Wells, 495 U.S. at 4, 110 S.Ct. at 1635. The Court found “no reason to insist that [inventories] be conducted in a totally mechanical ‘all or nothing¹ fashion.” Id. The Court held:

... A police officer may be allowed sufficient latitude to determine whether a particular container should or should not be opened in light of the nature of the search and characteristics of the container itself. Thus, while policies of opening all containers or of opening no containers are unquestionably permissible, it would be equally permissible, for example, to allow the opening of closed containers whose contents officers determine they are unable to ascertain from examining the containers’ exteriors. The allowance of the exercise of judgment based on concerns related to the purposes of an inventory search does not violate the Fourth Amendment.

Id.

Thus the Fourth Amendment permits the inventory of a closed container so long as the officer follows departmental policy or, in the officer’s opinion, the search farthers the purposes of an inventory search. With the foregoing in mind, we must now determine whether the instant inventory violated the Fourth Amendment.

Bailey testified “[a]s far as the search goes, his bags, the suitcases, everything that was in the trunk was gone through ... [a]s per department policy. An inventory of the vehicle.” According to Bailey, the inventory was conducted pursuant to established departmental policy; a policy which included the opening of closed containers. Further, the record indicates Bailey was unable to ascertain the contents of the containers by examining the containers’ exteriors. Finally, there is no evidence this inventory was a ruse to discover incriminating evidence. Because the Fourth Amendment permits the inventory of a closed container so long as the officer follows departmental policy or, in the officer’s opinion, the search furthers the purposes of an inventory search, we hold the instant inventory was lawful under the Fourth Amendment.²

Having determined the instant inventory was lawful under the Fourth Amendment, we must now determine whether the Texas Constitution provides greater individual protection than the United States Constitution in the context of inventories.

III.

FEDERALISM

Appellant contends art. I, § 9 of the Texas Constitution provides greater protection than the Fourth Amendment in the context of inventories. Appellant’s contention requires application of our decision in Heitman v. State, 815 S.W.2d 681 (Tex.Cr.App.1991). In Heitman we held the Texas Constitution may afford greater protection than its federal counterpart. Id., at 690.³ Relying on the Fourth Amendment and art. I, § 9 of the Texas Constitution, Heitman moved to suppress evidence seized from closed containers during an inventory.⁴ Without reaching the merits of Heitman’s claim, we concluded we were not bound by Supreme Court interpretations of the United States Constitution when analyzing and interpreting similar provisions of the Texas Constitution. Id. We stated: “we decline to blindly follow the Supreme Court’s decisions interpreting the Fourth Amendment in addressing art. I, § 9.” Id. In some situations, the Texas Constitution may provide greater protection.⁵

The traditional role of “federalism” refers to the coordinate relationship and distribution of power between the individual states and our national government. See, THE FEDERALIST No. 51, at 323 (J. Madison) (C. Rossiter ed. 1961). This concept is fundamental to our system of government. Federalism allows states to provide greater protection from government intrusion than that provided in the Federal Constitution; however, states may not restrict or provide less protection than that provided by the Federal Constitution. PruneYard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980); see also, Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975); Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967); and, Heitman, supra. In practical application, federalism recognizes that governmental intrusion on individual rights is inevitable; however, such intrusions should be slight. The genesis of restrictions on governmental encroachment lies both within the federal and state constitutions. See, Traylor v. State, 596 So.2d 957, 961 (Fla.1992).

The Federal Constitution secures a common degree of protection for the citizens of all fifty states. However, the Supreme Court must exercise restraint in construing the extent of this protection for several reasons. First, in federalism, important decisions concerning basic freedoms have traditionally inhered in the states. Second, a decision by the Supreme Court is binding on all jurisdictions within the Union; an appropriate decision in one jurisdiction may be inappropriate in another and any decision by the Supreme Court precludes experimentation with potentially rewarding alternative approaches. Finally, because the federal system embraces a multitude of localities, the Supreme Court oftentimes is unfamiliar with local problems, conditions and traditions. See generally, San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); and, Traylor, supra.

In Traylor v. State, 596 So.2d 957, 961 (Fla.1992), the Florida Supreme Court noted that state courts do not suffer these prudential concerns to the same extent. Unlike their federal counterpart, state courts and state constitutions have traditionally served as the prime protectors of their citizens’ basic freedoms. Further, a state court’s decision construing its own constitution is controlling only as to courts within that state; the ruling will not stifle the development of alternative methods of constitutional analysis in other jurisdictions. And finally, no court is more sensitive or responsive to the needs of the diverse localities within a state, or the state as a whole, than that state’s own high court. In any given state, the Federal Constitution thus represents the floor for basic freedoms; the State Constitution, the ceiling. Traylor, 596 So.2d at 961-62. See also, Stewart G. Pollock, State Constitutions as Separate Sources of Fundamental Rights, 35 Rutgers L.Rev. 707, 709 (1983). The Florida Supreme Court summarized the implications of federalism in our system of jurisprudence:

Federal and state bills of rights thus serve distinct but complimentary purposes. The federal Bill of Rights facilitates political and philosophical homogeneity among the basically heterogenous states by securing, as a uniform minimum, the highest common denominator of freedom that can prudently be administered throughout all fifty states. The state bills of rights, on the other hand, express the ultimate breadth of the common yearnings for freedom of each insular state population within our nation.

Traylor, 596 So.2d at 962.

Therefore, under the federalist system and the jurisdiction given this Court under art. V, § 5 of the Texas Constitution, we are bound to give primacy to our State Constitution, giving independent legal import to every phrase and clause contained therein.

IV.

TEXAS CONSTITUTION

Today, we are confronted with the issue left unanswered by Heitman: whether art. I, § 9 provides greater protection than the Fourth Amendment of the United States Constitution. Although the Texas Constitution may afford greater protection than the United States Constitution, efforts to breathe life into our State Constitution should not invite interpretations and policy rationale wholly unsupported by critical, legal reasoning. Therefore, it is imperative that an independent analysis of our Constitution be undertaken each time one of its provisions is to be interpreted. To determine whether our Constitution provides greater protection than its federal counterpart, we find the following factors helpful, although not independently dispositive: (A) a textual examination of the constitutional provision; (B) the Framer’s intent; (C) history and application of the constitutional provision; (D) comparable jurisprudence from other states; and, (E) the practical policy considerations behind the constitutional provision.⁶ We now consider these factors.

A. Textual Examination

The Fourth Amendment provides:

The rights of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const., amend. IV.

Art. I, § 9 provides:

The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures and searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.

Tex. Const, art. I, § 9.

An examination of these provisions reveals clear textual similarities between the Fourth Amendment and art. I, § 9. Because of the obvious resemblance in form and choice of words of these provisions, one might be tempted to prematurely conclude that these provisions import the same meaning and, therefore, their application should be similar.⁷ In theory such a technical construction appears desirable; however, the textual similarities of these provisions derive not from their intended meaning, but from a common origin. See generally, J.E. Ericson, Origins of the Texas Bill of Rights, 62 Sw. Hist.Q. 457 (1958); Rupert N. Richardson, Framing the Constitution of the Republic of Texas, 31 Sw.Hist.Q. 191 (1928). Further, a narrow construction leaves art. I, § 9 specifically, and the Texas Constitution generally, void of independent meaning. Construction of a constitutional provision should prevent any clause, sentence, or word from being superfluous, void, or insignificant. Cordova v. State, 6 Tex.App. 207 (1879); see also, Cramer v. Sheppard, 140 Tex. 271, 167 S.W.2d 147 (1942). Thus, homogeneity in text alone should not be the sole basis of statutory interpretation.

Further, a constitutional provision is not subject to a technical construction, as is a common law instrument or statute; a constitutional provision must be interpreted so as to carry out the general principles of government. Hunt v. State, 7 Tex.App. 212 (1879); Cramer, supra. There will be instances when comparisons between the text of our State Constitution and the Federal Constitution will reveal more differences than similarities or, in contrast, when varying interpretations hang on the meaning of a single word. In such circumstances, we may find that situations demand divergence from the federal model solely based on textual construction. Unfortunately, neither situation is present in this case. The Fourth Amendment and art. I, § 9 utilize verbiage that is both vague in meaning and generic in application. Any similarity between the Fourth Amendment and art. I, § 9 appears to be merely a coincidence of historical fact. Eisenhauer v. State, 754 S.W.2d 159, 170 (Tex.Cr.App.1988). Therefore, our determination of the instant issue requires further analysis.

B. Framers’ Intent

Little evidence, if any, exists to demonstrate the Framers’ intent in the enactment of art. I, § 9. Particularly lacking is any indication as to whether the Framers desired to eonvey broader protection through art. I, § 9 than that provided by the Fourth Amendment. See, Eisenhauer v. State, 754 S.W.2d 159 (Tex.Cr.App.1988) (Clinton, J., dissenting). But see, Heitman, supra. Art. I, § 9 has remained virtually unchanged from the creation of the Republic of Texas until the present. Matthew W. Paul & Jeffrey L. Van Horn, Heitman v. State: The Question Left Unanswered, 23 St. Mary’s L.J. 929, 955 (1992) (discussing an historical analysis of art. I, § 9 of the Texas Constitution). Having found no evidence of the Framers’ intent behind art. I, § 9 pertaining to inventories, we turn to the origins of the provision.

C. History and Application

There appears to have been a multitude of sources available to assist the Framers in the drafting art. I, § 9. There are indications, although not definitive, that our Bill of Rights derived from multiple sources such as the Spanish civil law, the Magna Charta, the English Bill of Rights, the Virginia Bill of Rights, the Declaration of Independence, the United States Constitution, and the early constitutions of other states, particularly those of Virginia, North Carolina, Pennsylvania, Kentucky and Tennessee. See, J.E. Ericson, Origins of the Texas Bill of Rights, 62 Sw.Hist.Q. 457, 458-66 (1958). See also, Matthew W. Paul & Jeffrey L. Van Horn, Heitman v. State: The Question Left Unanswered, 23 St. Mary’s L.J. 929, 936 (1992).

For one hundred years, fundamental rights of privacy and protections against arbitrary intrusion by state and local governments were secured only to the extent granted and provided by state constitutions. Newman, The “Old Federalism": Protection of Individual Rights by State Constitutions in an Era of Federal Court Passivity, 15 Conn. L.Rev. 21, 22 (1983). The guarantees in the federal Bill of Rights were not intended to, nor did they protect against “state action.” Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 242, 8 L.Ed. 672 (1833). Therefore, at the time art. I, § 9 was drafted, the Framers had little reason to have more than a civil interest in the Fourth Amendment because the protections of the Fourth Amendment were not extended to the states until 1949 in Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949).

Although it is unclear whether the Framers looked to the Fourth Amendment for guidance in drafting art. I, § 9, it is clear that the Fourth Amendment was derived from the Massachusetts State Constitution. Harris v. United States, 331 U.S. 145, 158, 67 S.Ct. 1098, 1105, 91 L.Ed. 1399 (1947) (Frankfurter, J., dissenting). Art. XIV of the 1780 Massachusetts Constitution provided:

Every subject has a right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions. All warrants, thereof, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure; and no warrant ought to be issued but in cases, and with the formalities, prescribed by the laws.

Similarities exist between the Massachusetts Constitution, art. I, § 9, and the Fourth Amendment. Therefore it is significant that, after an analysis of its state constitution, the Massachusetts Supreme Court determined that the Massachusetts State Constitution provided greater protection than the Fourth Amendment. See, Commonwealth v. Snyder, 413 Mass. 521, 597 N.E.2d 1363, 1367 (1992); Commonwealth v. Upton, 394 Mass. 363, 476 N.E.2d 548, 556 (1985) (“We conclude that art. XIV provides more substantive protection to criminal defendants than does the Fourth Amendment in the determination of probable cause.”). Thus, although the Fourth Amendment was at least partially derived from art. XIV of the Massachusetts Constitution, the Supreme Court has interpreted the Fourth Amendment narrowly while the Massachusetts Supreme Court has found greater protection in its State Constitution. Consideration of the history of the Fourth Amendment, art. XIV of the Massachusetts Constitution, and the similarities between art. I, § 9 and the Massachusetts Constitution, provides evidence that art. I, § 9 was intended to provide broader protection as well.

D. Comparable Jurisprudence

In his dissenting opinion in Eisenhauer, 754 S.W.2d at 177 n. 1, Judge Teague referred to a 1987 study which outlined, among other things, which states had accepted or rejected the United States Supreme Court’s interpretation of the Fourth Amendment in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. , 76 L.Ed.2d 527 (1983).⁸ At that time, only five states actively maintained judicial independence. Id. However, since Eisen-hauer, a growing number of state courts have opted for judicial independence. Just as Massachusetts has interpreted its Constitution to provide greater protection than the Fourth Amendment, other states have determined their constitutions afford greater protection than the United States Constitution.⁹

To determine whether the Texas Constitution provides greater protection than the Fourth Amendment, it is incumbent on us to review the decisions of the other states who have found more protection, as well as those who have declined to do so. Of those states who have followed the Supreme Court’s interpretation of the Fourth Amendment, the common denominator appears to be a desire to maintain uniformity among those decisions from the United States Supreme Court and those from the states’ highest courts.¹⁰ But, such reasoning conflicts with “[a state’s highest court’s] sworn duty to preserve, protect and defend the constitution and laws of [that state].” Eisenhauer v. State, 754 S.W.2d 159 (Tex.Cr.App.1988) (Clinton, J., dissenting).

Among the states that have found greater protection in their constitutions concerning unreasonable search and seizures, several have specifically considered the protection to be provided in an inventory. The general consensus among these states is that inventories should be limited to the original rationale behind an inventory. Officers should not be allowed to intrude into the privacy of citizens, using an inventory as a pretext to discover not readily visible evidence. As the California Supreme Court has stated, “Constitutional rights [of individual citizens should] not be evaded through the route of finely honed but non-substantive distinctions.” Mozzetti v. Superior Court, 4 Cal.3d 699, 94 Cal.Rptr. 412, 416, 484 P.2d 84, 88 (1971) (referring to searches of closed containers during an inventory).

The California Supreme Court held a search of a camper’s knapsack constitutional because a weapons search was justified when officers held an interest in protecting themselves while escorting the defendant from a primitive location at night. The Court reasoned that, in such a situation, the officer’s interest in protecting themselves outweighed the defendant’s privacy interest in his knapsack. People v. Brisendine, 13 Cal.3d 528, 119 Cal.Rptr. 315, 320, 531 P.2d 1099, 1104 (1975). However, the court rejected the State’s argument that a subsequent intrusion into an opaque, plastic bottle and an envelope, containing contraband, inside the knapsack was constitutional under art. I, § 13 of the California Constitution. Id., 119 Cal. Rptr. at 318, 531 P.2d at 1102.

In State v. Opperman, 89 S.D. 25, 228 N.W.2d 152 (1975), the South Dakota Supreme Court determined that an inventory of an unlocked glove compartment violated the Fourth Amendment. However, the United States Supreme Court reversed and remanded. On remand the South Dakota Supreme Court considered the inventory under the South Dakota Constitution holding:

... We find that logic and sound regard for the purposes of the protection afforded by S.D. Const., Art. VI, § 11 warrant a higher standard of protection for the individual in this instance than the United States Supreme Court found necessary under the Fourth Amendment.

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... [T]here must be a “minimal interference” with an individual’s protected rights. We now conclude as a matter of protection under S.D. Const., Art. VI, § 11, “minimal interference” with a citizen’s constitutional rights means that noninvestigative police inventory searches of automobiles without a warrant must be restricted to safeguarding those articles which are within plain view of the officer’s vision.

State v. Opperman, 247 N.W.2d 673, 675 (S.D.1976).

The Alaska Supreme Court considered a similar issue in State v. Daniel, 589 P.2d 408 (Alaska 1979).¹¹ Daniel was arrested for driving while intoxicated and an inventory was made of his vehicle. Id. at 409-10. The following events occurred:

From outside the vehicle, the trooper could see, on the back seat, a brown Samsonite briefcase with the top down and the latches open, facing toward the driver’s side of the front seat. Trooper McGinnis lifted the lid of the briefcase. He saw a large plastic sack containing a green vegetable matter that appeared to be marijuana and an automatic pistol. In the file section in the lid of the briefcase, the trooper found a clear plastic sack containing a white powder.¹²

Id. at 410. Although the Court concluded that an inventory of a vehicle is a minimal intrusion on the owners reasonable expectation of privacy, the Court held Daniel had a greater expectation of privacy in his closed briefcase under the Alaskan Constitution. The searching of “closed, locked or sealed luggage, containers, or packages contained within a vehicle is unreasonable and thus an unconstitutional search under the Alaska Constitution.” Id. at 417-18.

E. Practical Policy Considerations

As noted in part II of this opinion, the rationale behind the inventory is three-fold. First, an accurate inventory provides protection to the owner whose property is in police custody. United States v. Mitchell, 458 F.2d 960, 961 (9th Cir.1972). Second, the preparation of an accurate inventory protects the officers and their agency from claims of, or disputes concerning, property being lost or stolen. United States v. Kelehar, 470 F.2d 176, 178 (5th Cir.1972). Finally, allowing the officers to impound and inventory property protects the officers and others from potential danger. Cooper v. California, 386 U.S. 58, 61-62, 87 S.Ct. 788, 790-91, 17 L.Ed.2d 730 (1967). See, South Dakota v. Opperman, supra, (The towing and impounding of vehicles involved in accidents or illegally parked is a caretaking function performed for the safety of the public.); Cady v. Dombrowski, 413 U.S. 433, 436, 93 S.Ct. 2523, 2525, 37 L.Ed.2d 706 (1973) (warrantless search of a vehicle towed to a private garage was reasonable when officers believed the incapacitated driver was an off duty officer required to carry a weapon). These policies have frequently satisfied our requirement that a search be “reasonable.”

V.

CONCLUSION

After considering the foregoing factors, we hold that art. I, § 9 provides a privacy interest in closed containers which is not overcome by the general policy considerations underlying an inventory. This holding is consistent with the comparable jurisprudence discussed in Part IV, D, of this opinion. Just as those courts found greater protection under their state constitutional provisions concerning searches and seizures, we hold art. I, § 9 provides greater protection than the Fourth Amendment in the context of inventories. The officers interest in the protection of appellant’s property, as well as the protection of themselves from danger and the agency from claims of theft, can be satisfied by recording the existence of and describing and/or photographing the closed or locked container.

This is not to say that officers may never search a closed or locked container, only that the officers may not rely upon the inventory exception to conduct such a warrantless search. We refuse to presume the search of a closed container reasonable under art. I, § 9 simply because an officer followed established departmental policy.¹³

Accordingly, the judgment of the Court of Appeals is reversed and this case is remanded to the trial court.

1 . Appellant's grounds for review state:

(1) The Court of Appeals erred in holding that the search of the locked trunk of [appellant’s] vehicle and the unopened containers therein located was constitutionally permissible under Article 1, Section 9 of the Texas Constitution.

(2) The Court of Appeals erred in holding that the opening of the spare key container was constitutionally permissible under Article 1, Section 9 of the Texas Constitution.

(3)The Court of Appeals erred in holding by implication that the trial court acted properly under Article 1, Section 9 of the Texas Constitution in denying [appellant’s] Motion to Suppress Evidence.

2 . In his petition for discretionary review, appellant contended the instant search violated the Fourth Amendment. However, we refused those grounds for review. Nevertheless, before we can determine whether the Texas Constitution provides greater protection, we must determine the legality of the inventory under the United States Constitution.

3 . See also, Davenport v. Garcia, 834 S.W.2d 4, 7-10 (Tex.1992) (Texas Supreme Court acknowledged that the Texas Constitution extends greater freedom than the Federal Constitution).

4 . Heitman was discovered slumped forward in his vehicle outside a store at approximately 5:30 a.m. Officers found a loaded pistol on Heitman and arrested him for unlawfully carrying a weapon. As Heitman was transported to jail, the officers inventoried his vehicle and found a locked briefcase in the passenger compartment. The officers “jimmied” open the briefcase and found methamphetamine.

5 .On remand, the Court of Appeals found the search of Heitman’s briefcase to be reasonable under art. I, § 9, noting “the briefcase was one from which papers, at least, could be removed without unlocking the briefcase, the briefcase was subject to being jimmied open, and, of course, the briefcase itself was portable and could easily be moved from place to place.” Heitman v. State, 836 S.W.2d 840, 842-843 (Tex.App.—Fort Worth 1992).

6 . See generally, Catherine Greene Burnett and Neil Colman McCabe, A Compass in the Swamp: A Guide to Tactics in State Constitutional Law Challenges, 25 Tex.Tech L.Rev. 75, 79-104 (1993) (The structure of a state constitutional argument may include textual arguments, historical arguments, logical arguments, academic writings, structural arguments, prudential and policy considerations, persuasive foreign authorities, doctrinal arguments, and legislative and social facts.).

7 . In response to Heitman, commentators have argued that “although grammatically different, these constitutional provisions clearly grant the same guarantees and establish the same prerequisites to governmental action regarding search and seizure.” Matthew W. Paul and Jeffrey L. Van Horn, Heitman v. State: The Question Left Unanswered, 23 St. Mary’s L.J. 929, 936 (1992); cf James C. Harrington, Framing A Texas Bill of Rights Argument, 24 St. Mary's L.J. 399 (1993).

8 . The study entitled "Limits of the New Federalism” appeared in the January, 1987 issue of Search and Seizure Law Report. Judge Teague's reference to this study focused primarily on the United States Supreme Court's interpretation of the Fourth Amendment in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

9 . See, State v. Daniel, 589 P.2d 408, 414 (Alaska 1979); State v. Ault, 150 Ariz. 459, 724 P.2d 545 (1986); People v. Brisendine, 13 Cal.3d 528, 119 Cal.Rptr. 315, 327-28, 531 P.2d 1099, 1111-12 (1975); People v. Hillman, 834 P.2d 1271 (Colo.1992); State v. Oquendo, 223 Conn. 635, 613 A.2d 1300, 1308-09 (1992); State v. Kaluna, 55 Haw. 361, 520 P.2d 51, 58-59 (1974); State v. Guzman, 122 Idaho 981, 842 P.2d 660, 666-67 (1992); State v. Parms, 523 So.2d 1293, 1303 (La.1988); State v. Brown, 232 Mont. 1, 755 P.2d 1364, 1370 (1988); State v. Pellicci, 133 N.H. 523, 580 A.2d 710, 729 (1990); State v. Hempele, 120 N.J. 182, 576 A.2d 793, 799 (1990); People v. Johnson, 66 N.Y.2d 398, 497 N.Y.S.2d 618, 488 N.E.2d 439 (1985); State v. Caraher, 293 Or. 741, 653 P.2d 942, 947 (1982); State v. Opperman, 247 N.W.2d 673, 674-75 (S.D.1976); State v. Jackson, 102 Wash.2d 432, 688 P.2d 136 (1984).

10 .See, Bernie v. State, 524 So.2d 988 (Fla.1988); State v. Groff, 323 N.W.2d 204, 207-08 (Iowa 1982); State v. Tarantino, 587 A.2d 1095 (Me.1991); People v. Bullock, 440 Mich. 15, 485 N.W.2d 866, 868-69 (1992); In the Matter of the Welfare of E.D.J., 492 N.W.2d 829 (Minn.App.1992); State v. Geraldo, 68 Ohio St.2d 120, 429 N.E.2d 141, 145-46 (1981); Dixon v. State, 737 P.2d 942 (Okla.Crim.App.1987); State v. Earl, 716 P.2d 803, 805-06 (Utah 1986).

11 . Alaska’s Constitution is textually closer to the language of the Fourth Amendment than is the Texas Constitution. Art. I, § 14 of the Alaska Constitution provides:

The right of the people to be secure in their persons, houses and other property, papers, and effects, against unreasonable searches and seizures, shall not be violated.

12 . Laboratory tests revealed that the green vegetable matter was marijuana and that the white powder was cocaine. Daniel was thereafter charged with possession of an illegal substance and carrying a concealed weapon. Id., at 410 n. 4.

13 . Of course, if the officers obtained a valid warrant, they would be permitted to search a closed or locked container. In the alternative, the officers may conduct a warrantless search by meeting another exception to the warrant requirement. See, e.g., Hudson v. State, 588 S.W.2d 348 (Tex.Cr.App.1979); and, United States v. Wright, 588 F.2d 189 (5th Cir.1979).