Melvin Mayfield, Chief Judge.
Donald E. Colyer appeals his convictions of possession of a controlled substance with intent to deliver and possession of a firearm by a convicted felon.
Prior to trial, appellant’s motion to suppress evidence seized during the police inventory of appellant’s vehicle was denied and that evidence was introduced at trial. At the suppression hearing, Larry Hughes of the Berryville Police Department was the only witness and he testified that he and Officer Lovett responded to a telephone call reporting a truck stuck in the mud at the corner of Baker and Doxey Streets in Berryville. They went to that location and found the appellant behind the wheel of a station wagon trying to extricate it from a mud hole in the street which was under repair. The vehicle was hopelessly stuck and the officers offered to call a wrecker to pull it out and the appellant agreed.
Hughes further testified that he noticed there were no tags on the car and that appellant explained that he had j ust bought it, had been moving around quite a bit, and had just been buying temporary tags. The officers then obtained the appellant’s driver’s license and had him wait in his car while they returned to the patrol car to summon a wrecker and to run a routine identification check on the license. The check revealed that there were outstanding warrants for appellant from Madison County and from Rogers, Arkansas.
When the wrecker arrived, the officers advised appellant he was under arrest for those warrants and, since he appeared to be intoxicated, for being drunk on the highway. (Apparently public drunkeness. See Ark. Stat. Ann. § 48-943 [Repl. 1977]). Lovett then took appellantin the patrol car to the Carroll County Jail and Hughes directed that the car be towed to the jail parking lot before being taken to the storage yard.
At the lot, pursuant to standard department policy, Hughes and Lovett inventoried the vehicle. Hughes testified that the purpose of the inventory was to protect the department, the wrecker company, and the defendant by listing any valuables the subject might have in his car so that later there couldn’t be a charge that something was missing or in case vandals got into the vehicle and stole the owner’s possessions. He also testified that the officers anticipated appellant would be transported to Madison County that night.
In making the inventory, the officers found in the passenger compartment a number of cassettes, beer and whiskey, and three affidavits of citizenship made out in different names with appellant’s picture on them, one in the glove compartment and two on the floorboard. Hughes testified that as he crawled on his knees on the back seat to look behind it, the seat gave way and he saw in plain view a paper bag with a plastic bag inside it; he pulled out the plastic bag and it contained thirteen smaller bags of green vegetable material; and the standard field test on this material came back positive for marijuana. A loaded .22 rifle was also found in the folded-up portion of the rear of the wagon where the spare tire is normally kept. Hughes testified that they checked that compartment because they didn’t want the owner to come back later and say somebody stole a brand new tire.
Based on this testimony, the trial judge found that the officers’ initial intrusion into the vehicle was reasonable and followed a lawful impoundment of the vehicle. Citing Rule 12.6 (b) of the Arkansas Rules of Criminal Procedure, South Dakota v. Opperman, 428 U.S. 364 (1976), and Lipovich v. State, 265 Ark. 55, 576 S.W.2d 720 (1979), the judge found that the search was not unreasonable under the Fourth Amendment to the United States Constitution and denied appellant’s motion to suppress.
On appeal, appellant contends the trial court erred in denying the motion to suppress and he challenges the necessity for the impoundment and inventory and the scope of the search which revealed the marijuana and rifle.
Impoundment and Inventory
The Fourth Amendment to the United States Constitution provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” In Cady v. Dombrowski, 413 U.S. 433 (1973), the Court said that the Fourth Amendment, made applicable to the states by the Fourteenth, was not violated when the Wisconsin police made a warrantless search of Dombrowski’s automobile. The Court agreed that the police properly removed the vehicle from the road as Dombrowski was drunk and the vehicle was disabled and constituted a traffic hazard. The Court also agreed that the search of the vehicle made by the police was “standard procedure” and not unreasonable.
In South Dakota v. Opperman, supra, the Court found that a warrantless search was not unreasonable where a car had been impounded by the police for multiple parking violations and, following standard procedures, the police inventoried the contents of the car and discovered marijuana in the glove compartment. As part of what it had called “community caretaking functions” in Cady, the Court said that the authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge.
Citing Cady and Opperman, the Arkansas Supreme Court in Lipovich v. State, supra, said the warrantless inventory of a U-Haul truck was reasonable as part of the police “community caretaking functions” where the process was aimed at securing or protecting the vehicle, its contents and the public, rather than detecting or acquiring evidence relating to a criminal violation. The court concluded that the actions of the officers were reasonable and followed sound police practices, since they were dealing with a rented vehicle which its owner considered stolen and was found temporarily abandoned and posing a hazard on the highway.
In our case, the appellant had no license affixed to his vehicle as required by law and it was stopped in the intersection of two city streets. Appellant appeared intoxicated and couldn’t dislodge the car from the mud without assistance. As the state notes in its brief, appellant was a self-proclaimed transient with no apparent ties to the community. After his vehicle had been pulled from the mud, the officers would have the duty to restrain appellant from driving the vehicle in his drunken condition, and they could not wait until he sobered up to arrange for its removal. Moreover, as the appellant was to be transported elsewhere after his arrest, he couldn’t take the vehicle with him. Under these circumstances, we think it is clear that the officers had good cause to impound appellant’s vehicle under our Criminal Procedure Rule 12.6 (b), and that their actions were reasonable under Fourth Amendment standards.
Arkansas Criminal Procedure Rule 12.6 (b) provides:
A vehicle impounded in consequence of an arrest, or retained in official custody for other good cause, may be searched at such times and to such extent as is reasonably necessary for safekeeping of the vehicle and its contents.
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Melvin Mayfield, Chief Judge.
Donald E. Colyer appeals his convictions of possession of a controlled substance with intent to deliver and possession of a firearm by a convicted felon.
Prior to trial, appellant’s motion to suppress evidence seized during the police inventory of appellant’s vehicle was denied and that evidence was introduced at trial. At the suppression hearing, Larry Hughes of the Berryville Police Department was the only witness and he testified that he and Officer Lovett responded to a telephone call reporting a truck stuck in the mud at the corner of Baker and Doxey Streets in Berryville. They went to that location and found the appellant behind the wheel of a station wagon trying to extricate it from a mud hole in the street which was under repair. The vehicle was hopelessly stuck and the officers offered to call a wrecker to pull it out and the appellant agreed.
Hughes further testified that he noticed there were no tags on the car and that appellant explained that he had j ust bought it, had been moving around quite a bit, and had just been buying temporary tags. The officers then obtained the appellant’s driver’s license and had him wait in his car while they returned to the patrol car to summon a wrecker and to run a routine identification check on the license. The check revealed that there were outstanding warrants for appellant from Madison County and from Rogers, Arkansas.
When the wrecker arrived, the officers advised appellant he was under arrest for those warrants and, since he appeared to be intoxicated, for being drunk on the highway. (Apparently public drunkeness. See Ark. Stat. Ann. § 48-943 [Repl. 1977]). Lovett then took appellantin the patrol car to the Carroll County Jail and Hughes directed that the car be towed to the jail parking lot before being taken to the storage yard.
At the lot, pursuant to standard department policy, Hughes and Lovett inventoried the vehicle. Hughes testified that the purpose of the inventory was to protect the department, the wrecker company, and the defendant by listing any valuables the subject might have in his car so that later there couldn’t be a charge that something was missing or in case vandals got into the vehicle and stole the owner’s possessions. He also testified that the officers anticipated appellant would be transported to Madison County that night.
In making the inventory, the officers found in the passenger compartment a number of cassettes, beer and whiskey, and three affidavits of citizenship made out in different names with appellant’s picture on them, one in the glove compartment and two on the floorboard. Hughes testified that as he crawled on his knees on the back seat to look behind it, the seat gave way and he saw in plain view a paper bag with a plastic bag inside it; he pulled out the plastic bag and it contained thirteen smaller bags of green vegetable material; and the standard field test on this material came back positive for marijuana. A loaded .22 rifle was also found in the folded-up portion of the rear of the wagon where the spare tire is normally kept. Hughes testified that they checked that compartment because they didn’t want the owner to come back later and say somebody stole a brand new tire.
Based on this testimony, the trial judge found that the officers’ initial intrusion into the vehicle was reasonable and followed a lawful impoundment of the vehicle. Citing Rule 12.6 (b) of the Arkansas Rules of Criminal Procedure, South Dakota v. Opperman, 428 U.S. 364 (1976), and Lipovich v. State, 265 Ark. 55, 576 S.W.2d 720 (1979), the judge found that the search was not unreasonable under the Fourth Amendment to the United States Constitution and denied appellant’s motion to suppress.
On appeal, appellant contends the trial court erred in denying the motion to suppress and he challenges the necessity for the impoundment and inventory and the scope of the search which revealed the marijuana and rifle.
Impoundment and Inventory
The Fourth Amendment to the United States Constitution provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” In Cady v. Dombrowski, 413 U.S. 433 (1973), the Court said that the Fourth Amendment, made applicable to the states by the Fourteenth, was not violated when the Wisconsin police made a warrantless search of Dombrowski’s automobile. The Court agreed that the police properly removed the vehicle from the road as Dombrowski was drunk and the vehicle was disabled and constituted a traffic hazard. The Court also agreed that the search of the vehicle made by the police was “standard procedure” and not unreasonable.
In South Dakota v. Opperman, supra, the Court found that a warrantless search was not unreasonable where a car had been impounded by the police for multiple parking violations and, following standard procedures, the police inventoried the contents of the car and discovered marijuana in the glove compartment. As part of what it had called “community caretaking functions” in Cady, the Court said that the authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge.
Citing Cady and Opperman, the Arkansas Supreme Court in Lipovich v. State, supra, said the warrantless inventory of a U-Haul truck was reasonable as part of the police “community caretaking functions” where the process was aimed at securing or protecting the vehicle, its contents and the public, rather than detecting or acquiring evidence relating to a criminal violation. The court concluded that the actions of the officers were reasonable and followed sound police practices, since they were dealing with a rented vehicle which its owner considered stolen and was found temporarily abandoned and posing a hazard on the highway.
In our case, the appellant had no license affixed to his vehicle as required by law and it was stopped in the intersection of two city streets. Appellant appeared intoxicated and couldn’t dislodge the car from the mud without assistance. As the state notes in its brief, appellant was a self-proclaimed transient with no apparent ties to the community. After his vehicle had been pulled from the mud, the officers would have the duty to restrain appellant from driving the vehicle in his drunken condition, and they could not wait until he sobered up to arrange for its removal. Moreover, as the appellant was to be transported elsewhere after his arrest, he couldn’t take the vehicle with him. Under these circumstances, we think it is clear that the officers had good cause to impound appellant’s vehicle under our Criminal Procedure Rule 12.6 (b), and that their actions were reasonable under Fourth Amendment standards.
Arkansas Criminal Procedure Rule 12.6 (b) provides:
A vehicle impounded in consequence of an arrest, or retained in official custody for other good cause, may be searched at such times and to such extent as is reasonably necessary for safekeeping of the vehicle and its contents.
The appellant argues, however, that the inventory in this case was not made for the ‘‘safekeeping of the vehicle and its contents” but as a pretext for an investigatory search in violation of A.R.Cr.P. Rule 12.6 (b) and the Fourth Amendment. It is certainly true that Opperman recognized the possibility that the right to make an inventory search could be abused and the Court specifically noted that there was no suggestion that the inventory in that case was a pretext concealing an investigatory police motive.
Our standard of review is set out in State v. Tucker, 268 Ark. 427, 597 S.W.2d 584 (1980), where the court said:
On appeal we make an independent determination, based on the totality of the circumstances, as to whether evidence obtained by means of a warrantless search, as here, should be suppressed, and the trial court’s finding will not be set aside unless it is clearly against the preponderance of the evidence or dearly erroneous.
Although the appellant argues that the procedures here are vague and the officers’ actions suspicious, the trial court cited both A.R.Cr.P. Rule 12.6 (b) and Opperman and made the specific finding that the search was not unreasonable. Under the evidence and the law, we cannot hold that the trial judge’s finding is clearly erroneous.
For various reasons, the cases cited by appellant do not persuade us to a contrary view. In State v. Slockbower, 397 A.2d 1050 (N.J. 1979), for example, the trial judge held that the impoundment had been a pretext to justify a prior search. In our case, however, the trial judge held differently. In Miller v. State, 403 So. 2d 1307 (Fla. 1981), the court said:
What we hold is that an officer, when arresting a present owner or possessor of a motor vehicle, must advise him or her that the vehicle will be impounded unless the owner or possessor can provide a reasonable alternative to impoundment. An inventory search of a motor vehicle without such advice or consultation to a present owner or possessor upon arrest results in an unreasonable search under the United States and Florida constitutions and must be excluded under the Florida constitutional exclusionary rule.
While we think that alternatives to impoundment are proper considerations, we think this is simply a factor to be considered in determining what is reasonable. We note this was also the view taken by the two dissenting judges in Miller. Certainly the requirement of Miller is not a Fourth Amendment requirement. Opperman quoted with approval from an earlier opinion that said the “test of reasonableness cannot be fixed by per se rules; each case must be decided on its own facts.” And we do not think Miller’s requirement is a requirement under Arkansas law; nor do we think it should be.
Seizure of the Marijuana
Appellant argues that the warrantless search of the paper bag discovered when the back seat gave way was unreasonable, exceeded the permissible limits of A.R.Cr.P. Rule 12.6 (b), and violated his constitutional rights. We do not agree.
It is appellant’s position that the inspection of the contents of a paper bag does little to advance the legitimate purposes of safekeeping the vehicle and its contents. Moreover, he contends, the officer could have removed the bag, stapled it, and placed it with appellant’s other personal effects, or that he could have simply left it where it was and placed the seat back in its original position.
Let us first isolate the principle involved. A.R.Cr.P. Rule 12.6 (b) provides that a vehicle in custody may be searched at such times and to such extent as is reasonably necessary for safekeeping of the vehicle and its contents. The Fourth Amendment prohibits unreasonable searches and seizures.
As appellant’s brief points out, this is an inventory search case and not a probable cause case like United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). Here the police were not looking for contraband or evidence of a crime. They were seeking to safeguard the contents of the vehicle and to protect themselves as well. Given the factual finding made by the trial judge, we cannot assume that Officer Hughes was making an investigative search. Therefore, once the paper bag was unintentionally discovered, it was the officer’s duty to safeguard its contents and we are not willing to say that he acted unreasonably when he determined what those contents were instead of following one of the alternatives suggested by appellant.
Search of the Tire Compartment
The appellant also contends that the officer’s inspection of the spare tire compartment, in which the rifle was discovered, exceeded that which was reasonably necessary to safeguard the contents of the vehicle and that this violated his constitutional rights. He asserts that the spare tire compartment is analogous to the trunk of a car and relies on U.S. v. Lawson, 487 F.2d 468 (8th Cir. 1973).
In the first place, many cases do not agree with Lawson which held that a gun found in the trunk of an impounded automobile should be suppressed. In Cady the United States Supreme Court approved a search of the trunk of an impounded car. The Eighth Circuit’s decision in Lawson is also contrary to decisions in some of the other circuits. See United States v. Edwards, 577 F.2d 883 (5th Cir. 1978); United States v. Balanow, 528 F.2d 923 (7th Cir. 1976); and United States v. Martin, 566 F.2d 1143 (10th Cir. 1977). But we think the real principle involved is ably discussed in a later Eighth Circuit case, United States v. Wilson, 636 F.2d 1161 (8th Cir. 1980).
In Wilson the court held that because the defendant was present and could have arranged to remove his car without the necessity of police impoundment, or because the police could have inventoried the locked trunk as a unit without opening it, or because other alternatives were available, the inventory search of the trunk was unreasonable within the meaning of the Fourth Amendment. Under the circumstances there involved, we might not disagree with the decision in Wilson, but the circumstances in the case at bar are different from those.
Without belaboring the point, it is enough to say that under the circumstances here, we do not think the trial court was clearly wrong in holding that it was not unreasonable for the officer to raise the folded-up portion in the rear of the station wagon to determine whether there was a spare tire in that compartment.
The judgment of the trial court is affirmed.
Cooper, J., concurs. Corbin and Glaze, JJ., dissent.