People v. Bertine

706 P.2d 411, 54 U.S.L.W. 2211, 1985 Colo. LEXIS 511

• Court: Supreme Court of Colorado
• Decided: September 30, 1985
• Docket: 84SA331
• Status: Published

Opinions

ERICKSON, Justice.

The district attorney filed this interlocutory appeal after the district court granted a defense motion to suppress evidence seized from the defendant’s backpack during an automobile inventory search. We affirm.

I.

At approximately 12:50 a.m. on February 10, 1984, Officer Julius Toporek (Toporek) of the Boulder Police Department observed the defendant’s older model panel truck traveling at a high rate of speed. Toporek followed the vehicle and saw the defendant change lanes several times without signal-ling. By following the defendant’s vehicle and maintaining a constant distance, Topo-rek estimated the vehicle’s speed at approximately fifty to fifty-five miles per hour. The posted speed limit was thirty miles per hour. Toporek then turned on his overhead lights and stopped the vehicle.

Toporek approached the vehicle and asked the driver, Steven Lee Bertine (defendant), for his driver’s license and registration. The defendant and his dog were the only occupants in the vehicle. In talking to the defendant, Toporek detected a strong odor of an alcoholic beverage on the defendant’s breath. He also noticed that the defendant’s eyes were watery and glassy, and that the defendant’s speech was slurred and somewhat dragged out. Based upon his observations, Toporek believed that the defendant was driving while under the influence of alcohol.

Toporek asked the defendant to perform a series of roadside sobriety tests. The defendant complied with the request and completed the tests. Toporek concluded, based on his observations, that defendant was intoxicated and advised the defendant that he was under arrest for an alcohol-related offense.

After taking the defendant into custody, Toporek asked Officer Reichenback (Rei-chenback), who had arrived as a backup officer, to impound the defendant’s vehicle. Subsections 7-7-2(a)(l) and 7-7-2(a)(4) of the Boulder Revised Code authorize police officers to impound vehicles when drivers are taken into custody or when a vehicle obstructs traffic or creates a traffic hazard.¹ In the course of impounding the ve-hide, Reichenback radioed an animal control unit to remove the defendant’s dog. After the dog was removed, Reichenback requested a tow truck.

Before the tow truck arrived, Reichen-back made an inventory of the items found in the vehicle in accordance with Boulder police procedure,² and listed jumper cables, a tire, a shovel, and some sandbags. Rei-chenback also discovered a closed backpack directly behind the front seat and made a detailed inventory of the contents of the backpack. The officer first unzipped the main compartment where he found, among other items, a separate, zippered nylon bag. He then unzipped the nylon bag and found three tin cans and an “Irish Mocha Mint” coffee can, all secured with covers. The officer opened the coffee cans and found the contraband in issue. The property report documenting thé contents of the backpack reflects that one of the tin cans contained cocaine paraphernalia, another contained bindles of cocaine, and the third contained $700 in cash, all in twenty-dollar bills. The coffee can contained more bin-dles of cocaine and a number of tablets in a zip-lock bag. After the inventory was completed, a private tow-truck company towed the defendant’s vehicle to its impound lot.

Defendant asserted a number of grounds for suppression of the evidence seized in the inventory search. He argued that To-porek did not have sufficient grounds to make a stop, that there was no probable cause for his arrest, and that the impoundment and inventory were not conducted in accordance with standard procedure. He also claimed that the inventory was merely a pretext for a warrantless investigatory search. Finally, he asserted that the police officers exceeded the constitutional limits of a proper inventory search by examining the inside of the backpack, when the purposes for the search could have been achieved by less intrusive means, such as sealing the car doors with evidence tape or removing the backpack and listing it as one sealed unit.

Following the suppression hearing, the trial court found that the police had probable cause to make the initial stop, to administer the roadside sobriety tests, and to arrest the defendant. The trial court also found that the officers followed standard police procedures when they impounded the vehicle and conducted a detailed inventory search of its contents. The trial court rejected defendant’s contentions that the police conducted the search in bad faith and that the inventory search was a pretext for an investigatory search.

In reviewing the scope of the search, the trial court relied on Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983), and concluded that the search was reasonable under the fourth amendment to the United States Constitution. However, because of People v. Counterman, 192 Colo. 152, 556 P.2d 481 (1976), the trial court held that the search violated article II, section 7 of the Colorado Constitution. It is from this ruling that the prosecution appeals.

II.

The fourth amendment safeguards an individual from an unreasonable governmental invasion of his privacy. Because of the important role that a search warrant plays in protecting fourth amendment liberties, the Supreme Court has held that searches conducted without a warrant are per se unreasonable, “subject only to a few specifically established and well-delineated exceptions.” See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967)); Chimel v. California, 395 U.S. 752, 759, 89 S.Ct. 2034, 2038, 23 L.Ed.2d 685 (1969).

The Supreme Court first recognized the inventory exception to the warrant requirement in South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). In Opperman, the police impounded the defendant’s unoccupied automobile after two parking tickets were issued charging that the ear was parked in a restricted zone. At the impound lot, a police officer observed a watch on the dashboard and other items of personal property in plain view on the back seat and floorboard. Following routine procedure, the officer inventoried the contents of the automobile and discovered a plastic bag of marijuana in the unlocked glove compartment.

In upholding the search, the Supreme Court established the balancing test weighing the legitimate governmental interests advanced by the search against the invasion of privacy which the search entailed. The Court pointed out that an individual possesses a diminished expectation of privacy in an automobile because of the public nature of automobile travel and because automobiles, unlike homes or offices, are subject to pervasive governmental regulation and inspection. 428 U.S. at 367-68, 96 S.Ct. at 3096. Balanced against this diminished expectation of privacy, the Court weighed three governmental interests served by an inventory search: (1) the protection of the owner’s property while it remains in police custody; (2) the protection of the police against claims or disputes over lost or stolen property; and (3) the protection of the police from potential danger. Id. at 369, 96 S.Ct. at 3097.

Based on the facts in Opperman, the Court concluded that the warrantless inventory search of the glove compartment did not violate the fourth amendment. The Court specifically emphasized that the defendant was unavailable to make other arrangements for the safekeeping of his belongings, and that the search was prompted by the presence of a number of valuables in plain view inside the vehicle. Id. at 375-76, 96 S.Ct. at 3100. Cf. South Dakota v. Opperman, 247 N.W.2d 673 (S.D.1976).

Although Opperman approved of automobile inventories in general, the Court’s opinion did not foreclose challenges regarding the permissible scope of such searches. Opperman did not resolve whether law enforcement officers, in the course of an inventory search, could open and examine luggage and other closed containers, which, unlike a glove compartment, have privacy interests that are not diminished in any way. Four dissenters in Opperman stressed: “[T]he Court’s opinion does not authorize the inspection of suitcases, boxes or other containers which might themselves be sealed, removed and secured without further intrusion.” Id. 428 U.S. at 388 n. 6, 96 S.Ct. at 3106 n. 6 (Marshall, J., dissenting).

Because Opperman did not resolve the container question, courts subsequently looked to Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), and United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), for guidance on the issue. Both decisions hold that the fourth amendment required exclusion of evidence seized by police officers in the warrantless search of closed containers found in an automobile. In Chadwick, the Court concluded that the warrantless search of a double-padlocked footlocker could not be justified under the automobile exception to the warrant requirement. Distinguishing the case from South Dakota v. Opperman, the Court stated:

The factors which diminish the privacy aspects of an automobile do not apply to respondent’s footlocker. Luggage contents are not open to public view, except as a condition to border entry or common carrier travel; nor is luggage subject to regular inspections and official scrutiny on a continuing basis. Unlike an automobile, whose primary function is transportation, luggage is intended as a repository of personal effects. In sum, a person’s expectations of privacy in personal luggage are substantially greater than in an automobile.

433 U.S. at 13, 97 S.Ct. at 2484 (emphasis added).

Similarly, in Arkansas v. Sanders, 442 U.S. at 753, 99 S.Ct. at 2587, the Court held that the warrantless search of a suitcase seized from the trunk of a taxicab violated the fourth amendment. In his concurring opinion, Chief Justice Burger stated: “The essence of our holding in Chadwick is that there is a legitimate expectation of privacy in the contents of a trunk or suitcase accompanying or being carried by a person; that expectation of privacy is not diminished simply because the owner’s arrest occurs in a public place.” Id. at 766-767, 99 S.Ct. at 2594 (Burger, C.J., concurring).³

Several courts have extended the principles enunciated in Chadwick and Sanders to containers opened during the course of a routine inventory search. E.g., United States v. Bloomfield, 594 F.2d 1200 (8th Cir.1979) (inventory search of knapsack); cf. United States v. Schleis, 582 F.2d 1166 (8th Cir.1978) (inventory search of briefcase); United States v. Calandrella, 605 F.2d 236 (6th Cir.1979) (inventory search of briefcase). These cases recognized that an individual possesses a reasonable expectation of privacy in regard to sealed containers that must be respected during an inventory search.

In People v. Counterman, 192 Colo. 152, 556 P.2d 481 (1976), we held that an inventory search of a closed knapsack found inside an impounded vehicle violated the defendant’s rights under the fourth amendment of the United States Constitution and article II, section 7 of the Colorado Constitution. Recognizing what the Supreme Court later made explicit in Chadwick and Sanders, we stated that the defendant “clearly had an expectation of privacy with regard to his sealed knapsack which was sufficient to invoke constitutional protections against unreasonable police intrusion.” 192 Colo, at 154, 556 P.2d at 483. Balanced against this strong privacy interest, we found that the government interests served by the search were relatively weak:

The knapsack did not give any indication that its contents were dangerous or particularly valuable and in need of a special inventory. The legitimate purposes of the inventory search could have been fully accomplished by merely noting the item as a sealed knapsack. The defendant could have been offered the choice of a full inventory of the contents at the police station.

Id. at 158, 556 P.2d at 485.

In the present case, although the district court suppressed the evidence on state constitutional grounds, the court concluded that the inventory search of defendant’s backpack did not violate the defendant’s rights under the United States Constitution. The court reasoned that Illinois v. Lafayette, 462 U.S. at 640, 103 S.Ct. at 2606, rejected our fourth amendment analysis in Counterman. We disagree.

III.

In Lafayette, the defendant was arrested in a movie theater for disturbing the peace and taken to the police station for booking. At the stationhouse, a police officer ordered the defendant to empty his pockets and place the contents on the counter. After doing so, the defendant took a package of cigarettes from his shoulderbag and placed the bag on the counter. The officer then removed the contents of the bag and found several amphetamine tablets inside a cigarette package. Relying on the government’s overriding interest in preserving the security of the stationhouse and jail, the Court concluded that it was not unreasonable for the police to search any container or article in the arrested person’s possession as a standard preincarceration procedure. 462 U.S. at 648, 103 S.Ct. at 2610-2611.

In our view, the holding in Lafayette is inapposite to this case. Unlike the present case, Lafayette did not involve an inventory search of an impounded automobile. The sole question in Lafayette concerned whether the police acted reasonably in searching the defendant’s shoulderbag pri- or to incarceration.

This court has implicitly recognized that the governmental interests served by a preincarceration inventory search are invariably greater than the governmental interests advanced by the search of an impounded vehicle. Compare People v. Glaubman, 175 Colo. 41, 485 P.2d 711 (1971) with People v. Counterman, 192 Colo, at 152, 556 P.2d at 481.⁴ Unlike an inventory search of an impounded vehicle, a preincarceration search is justified by the need to prevent the introduction of contraband or weapons into the jail facility. As the Court emphasized in Lafayette:

Arrested persons have also been known to injure themselves — or others — with belts, knives, drugs or other items on their person while being detained. Dangerous instrumentalities — such as razor blades, bombs, or weapons — can be concealed in innocent-looking articles taken from the arrestee’s possession. The bare recital of these mundane realities justifies reasonable measures by police to limit these risks....

462 U.S. at 646, 103 S.Ct. at 2609.

Lafayette is consistent with our decisions holding that the police have wide latitude in conducting searches' in a jail setting. See, e.g., People v. Glaubman, 175 Colo, at 41, 485 P.2d at 711 (preincarceration search of pouch held reasonable); Avalos v. People, 179 Colo. 88, 498 P.2d 1141 (1972) (preincar-ceration search of purse held reasonable). See also United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974). Because of the compelling need to prevent the introduction of weapons and contraband into a jail facility, we have generally upheld searches of purses and other containers in an arrested person’s possession, even though the governmental interests supporting the search might conceivably have been achieved through less intrusive means.

As our decision in Counterman demonstrates, the same compelling governmental interests that justify broad searches in the jailhouse setting do not necessarily extend to inventory searches of impounded vehicles.⁵ Generally, the governmental interests supporting an automobile inventory search are not as great as those supporting a preincarceration search. Therefore, police officers must give greater deference to the individual’s expectation of privacy in the contents of his vehicle. See, e.g., People v. Grana, 185 Colo. 126, 527 P.2d 543 (1974) (search of zippered flightbag).

Because of the greater governmental interests served by a preincarceration search, Lafayette’s broad language should not be extended to the facts in this case. We do not interpret Lafayette as giving police unbridled authority to search every container and package found in an automobile during a routine inventory search. Nor do we read Lafayette as stripping courts of all discretion to protect individuals from over-intrusive invasions in the context of an automobile inventory search. The reasonableness of any automobile inventory search must, in our view, still be determined by applying the legal standards set forth in Opperman and Counterman. 6

Applying those standards to this case, we hold that the inventory search of the backpack did not comply with fourth amendment standards of reasonableness. During the suppression hearing, the tow-truck operator testified that the impound lot was entirely enclosed by a six-foot fence; that the lot was locked and lighted; that no one other than the tow-truck company had access to the lot; that police officers and security officers routinely patrolled the area; and that to the best of his knowledge nothing had ever been stolen from a vehicle stored at the lot. Secure facilities for the defendant’s automobile were thus available. Compare People v. Grana, 185 Colo, at 126, 527 P.2d at 543 (search unreasonable where impound lot was fenced and patrolled by dogs) with South Dakota v. Opperman, 428 U.S. at 366 n.1, 96 S.Ct. at 3095 n.1 (impound lot was an “old county highway yard” with a dilapidated wire fence where police had experienced difficulty with theft).⁷

In addition, the defendant here was available and the necessity or justification for a full inventory search of the automobile and its contents was not established. Compare South Dakota v. Opperman, 428 U.S. at 364, 96 S.Ct. at 3094, and Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973) (unavailability of owner significant factor in upholding inventory search) with People v. Counterman (defendant available). In Cady v. Dombrow-ski, the defendant was involved in a one-car collision and arrested for driving under the influence of alcohol. At the direction of the police, the defendant’s car was towed from the scene of the accident to a private garage. The defendant, an off-duty police officer at the time of the accident, was believed to have been carrying a revolver. The weapon was not found on the defendant’s person or in the car at the scene of the accident. The Court upheld the action of the police in returning to the car and searching it without a warrant. The Court stated that since the police reasonably believed that a weapon might be found in the defendant’s vehicle and might fall into the hands of vandals if not removed, the search was reasonable. The Court noted that at the time of the search the defendant was in a coma and thus unable to remove the weapon himself. In the present case, there was no similar exigency to justify the war-rantless search of the defendant’s backpack, and the defendant was available to make alternative arrangements for its safekeeping.

Most significantly, the search here involved an intrusion into a container intended as a repository of personal effects. Unlike the unlocked glove compartment in Op-perman, containers such as backpacks do not carry a diminished expectation of privacy. See Arkansas v. Sanders, 442 U.S. at 753, 99 S.Ct. at 2587; United States v. Chadwick, 433 U.S. at 1, 97 S.Ct. at 2478. The defendant here, like the defendant in Counterman, clearly had an expectation of privacy with respect to the sealed knapsack that was sufficient to invoke constitutional protections against unreasonable searches and seizures.

We fail to see any factual exigencies or unique circumstances that would justify a departure from our holding in Counterman. If anything, the search here constitutes a much more serious invasion of privacy than the search in Counterman. Not only did the officer open and search the closed backpack, he also searched two other sealed containers inside the backpack before discovering the contraband in question. Even assuming that the officer acted reasonably in opening either the backpack or the sealed nylon bag, little justification existed for further intrusion into the sealed cans. We have repeatedly held that an inventory search must be limited to those areas where valuables or weapons may “reasonably” be found. E.g., People v. Rutovic, 193 Colo. 397, 566 P.2d 705 (1977); People v. Grana, 185 Colo. at 126, 527 P.2d at 543.

In this case, the tin cans gave little indication that their contents contained valuables or dangerous instrumentalities. Thus, the governmental interests served by the search were not substantial. Accord State v. Jewell, 338 So.2d 633 (La.1976) (inventory search of aspirin bottle held unreasonable since bottle was unlikely place for storage of valuables or weapons). Applying the balancing test established in Op-perman, we conclude that the defendant’s privacy interests in the cans outweighed the government’s need to inventory their contents.

We also reject the prosecution’s argument that the search should be upheld since the officer inventoried the backpack pursuant to Boulder Police Department directives. Although a finding that the police followed routine procedure is important in determining whether a search is reasonable, see People v. Meeks, 194 Colo. 214, 570 P.2d 835 (1977), such a finding should not end a court’s inquiry. See People v. Hicks, 197 Colo. 168, 171, 590 P.2d 967, 969 (1979).⁸ As one court has observed, “[u]nconstitutional searches cannot be con-stitutionalized by standardizing them as a part of normal police practice.” State v. Jewell, 338 So.2d at 640. Even though routine procedures have been followed, courts should not blind themselves to police practices that sanction an unlimited intrusion into areas where an individual clearly possesses a reasonable expectation of privacy. Simply put, the rights secured by the fourth amendment cannot be eliminated by administrative fiat. See Note, Illinois v. Lafayette: Has the Fourth Amendment Vanished in the Face of Administrative Expediency? 21 Cal.W.L.Rev. 218 (1984).

In conclusion, our decision in Counterman is dispositive of the issues raised in this appeal. We therefore affirm the trial court’s order suppressing the evidence. Because we view the search here as viola-tive of fourth amendment protections, we need not decide whether article II, section 7 of the Colorado Constitution provides citizens of this state with greater protections than the United States Constitution in the area of automobile inventory searches.

The trial court’s suppression order is therefore affirmed.

ROYIRA, J., dissents, and QUINN, C.J., joins in the dissent.

1 . Section 7-7-2(a) provides in pertinent part:

A peace officer is authorized to remove or cause to be removed a vehicle from any street, parking lot, or driveway when:

(1) A vehicle is situated in a manner that obstructs the normal movement of traffic and the person in possession of the vehicle is not present or is unwilling or unable to provide for its immediate removal; [or]

(4) The driver of a vehicle is taken into custody by the police department....

Boulder Rev.Code §§ 7-7-2(a)(l), -2(a)(4) (1981).

2 . Boulder Police Department directives specify:

A. Upon placing a motor vehicle in Police custody, Officers shall take the following steps in securing the vehicle and its contents:

1. If the vehicle or its contents have been used in the commission of a crime, or are themselves the fruit of a crime, the Officer shall conduct a detailed vehicle inspection and inventory and record it upon the VEHICLE IMPOUND FORM.

2. Personal items of value should be removed from the vehicle and subsequently placed into Property for safekeeping.

3. The Officer shall request a Tow Truck, and upon its arrival have the Tow Truck operator sign the IMPOUND FORM, keeping one copy in his possession, before the Officer releases the vehicle for impoundment in the City of Boulder impoundment facility.

General Procedure issued from the office of the Chief of Police, Boulder Police Department, Boulder, Colorado, concerning Motor Vehicle Impounds, effective September 7, 1977 (emphasis added).

The Boulder Police Department’s directives provide officers with a number of alternatives when they arrest a motorist for serious violations of the motor vehicle code. Although the procedure followed in this case was officially authorized, the officer also had the option of either sealing the vehicle before it was towed away, or driving the vehicle to the nearest lot and locking it. The Boulder Police Department’s regulations and rules do not require that an automobile be inventoried and searched in accordance with the procedures followed in this case.

3 . Subsequent to Chadwick and Sanders the Supreme Court announced New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981), and United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). In Belton, the Court held that when a police officer has made a lawful custodial arrest of an occupant of an automobile, he may contemporaneously search the passenger compartment of the automobile and any containers found within the passenger compartment. In Robbins, however, the court rejected the contention that the automobile exception to the warrant requirement justifies the warrant-less search of closed containers found inside the automobile. The Court held that a container found during a lawful search of an automobile may not be opened without a warrant, unless the contents of the container are in plain view. Only one year after Robbins the Court reversed itself and declared in Ross that under the automobile exception to the warrant requirement, the police may conduct a warrantless search of the entire automobile, including all containers found inside the automobile.

The broad scope of the searches upheld in Belton and Ross was justified by the Court based upon the purposes of those searches. In a search incident to the arrest of an occupant of an automobile, the purpose is to prevent the arrested person from grabbing a weapon or trying to destroy evidence. Therefore, the containers in the passenger compartment may be searched because they are under the control of the arrested person. The purpose behind the automobile exception is to allow contraband to be seized from an automobile before it can be secreted away. This purpose justifies a search of the entire automobile and any containers found therein.

By contrast, the purposes supporting an inventory search of an automobile do not give the police unlimited authority to search any container found inside the automobile. See supra 414; infra pp. 416, 417-419.

4 . In Glaubman, Boulder police arrested the defendant and transported him to police headquarters. There, the police searched a pouch found dangling from the defendant’s trousers and discovered marijuana and LSD. We upheld the search "on the grounds that it was an inventory search incident to the Boulder police booking procedure which was designed to prevent Glaubman from causing contraband or weapons to be introduced into the jail and to insure security in the jail.” 175 Colo, at 54, 485 P.2d at 718.

5 . In Counterman, we refused to extend our holding in Glaubman to inventory searches of automobiles.

6 . Professor LaFave suggests the following five factors to examine after Opperman in determining whether a particular inventory search complies with fourth amendment standards of reasonableness: (1) whether the jurisdiction has secure facilities where impounded vehicles can be adequately safeguarded from vandals and thieves; (2) whether the car owner is available to make alternative arrangements; (3) whether the vehicle was likely to be impounded for a long period of time; (4) whether the police confined the search to parts of the car customarily used to store valuables; and (5) whether the search involved an intrusion into an area where the owner possessed an expectation of privacy. See 2 W. LaFave Search & Seizure § 7.4 (1978).

7 .We recognize that simply because less intrusive means of safeguarding the defendant’s property were available to the police in this case does not render the inventory search unreasonable. As the Court in Illinois v. Lafayette noted: ”[T]he real question is not what ‘could have been achieved,’ but whether the Fourth Amendment requires such steps_” 462 U.S. at 647, 103 S.Ct. at 2609 (emphasis in original). Of course, in determining what the fourth amendment requires, we must balance governmental interests against the defendant’s privacy interests. We believe that the availability of secure impoundment facilities in this case served to lessen the need of the police to conduct a detailed inventory search of defendant’s vehicle.

8 . As we stated in Hicks:

The existence of a routinely required inventory procedure does not alone validate searches carried out pursuant to that procedure. If a warrantless inventory search were to be permitted "on any arrest when a [p]arty and [v]ehicle are separated,” the exception which allows a warrantless inventory of an automobile’s contents would soon eclipse the rule that a search warrant is the sine qua non of a Fourth Amendment search. 197 Colo, at 171, 590 P.2d at 969.