State v. Atkinson

688 P.2d 832, 298 Or. 1, 1984 Ore. LEXIS 1727
CourtOregon Supreme Court
DecidedSeptember 25, 1984
DocketCA A22274; SC S30071
StatusPublished
Cited by164 cases

This text of 688 P.2d 832 (State v. Atkinson) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Atkinson, 688 P.2d 832, 298 Or. 1, 1984 Ore. LEXIS 1727 (Or. 1984).

Opinions

[3]*3PETERSON, C. J.

The issue in this case is whether a police inventory of the contents of an impounded automobile without a search warrant violated defendant’s right to be secure against unreasonable searches and seizures as guaranteed by the state and federal constitutions.1

I

A person called the police during early morning hours to report a man acting suspiciously in the neighborhood. The police patrolled the neighborhood and found an unattended car the suspect may have been driving. With some police remaining at the car, others continued to check the area in an attempt to find the suspect. In addition, unsuccessful efforts were made to contact the car’s owner to retrieve the vehicle prior to having it towed away.

After approximately three and one-half hours, the car was “impounded” and towed to a locked police storage shed until it could be inventoried.

A few hours later, the police “inventoried” the car, that is, an officer went through the car’s interior, including looking under the seats and into the unlocked glove compartment, but not the locked trunk,2 and prepared a detailed list of items in the vehicle. At the completion of the inventory, the items were left in the car. The officer testified that the inventory was conducted in accordance with Polk County [4]*4Sheriffs Department policy. When asked whether he had been told prior to taking the inventory that the automobile had been seized because it was suspected of being involved in a burglary, the officer who performed the “inventory” of the contents of the vehicle said he had. He also testified that he was “looking for evidence of a crime” while carrying out the standard inventory practice of the department. In the course of the inventory, the inventorying officer opened the unlocked glove compartment and found items which may link defendant to burglaries in the area, items which are the subject of defendant’s motion to suppress.

Originally, the state appealed an order allowing, in part, the defendant’s motion to suppress. The defendant cross-appealed from the order denying other parts of his motion to suppress. ORS 138.040. The Court of Appeals reversed and remanded with instructions to suppress a map and bottle found on examining the glove compartment of the defendant’s car, stating that the inventory of the glove compartment exceeded what we found permissible under Article I, section 9, of the Oregon Constitution in State v. Keller, 265 Or 622, 510 P2d 568 (1973). Four judges specially concurring rejected Keller’s application to the case but reached the same result based on State v. Lowry, 295 Or 337, 667 P2d 996 (1983). Two dissenters contended that State v. Keller, supra, does not preclude the inventory of a glove compartment and would affirm the trial court under South Dakota v. Opperman, 428 US 364, 96 S Ct 3092, 49 L Ed 2d 1000 (1976).

II

The overall principle repeatedly stated in this court and the Supreme Court of the United States is that “[ejxcept in a few carefully defined classes of cases, a search of private property without valid consent is ‘unreasonable’ unless it has been authorized by a valid search warrant.” South Dakota v. Opperman, supra, 428 US at 381 (Powell, J., concurring); See also State v. Greene, 285 Or 337, 340-41, 591 P2d 1362 (1979). Under the federal constitution, cases of noninvestigatory inventories of the contents of impounded automobiles have been held to be one of those excepted classes.

The only prior pronouncement by this court that touches on an inventory of an automobile apparently assumed that no search warrant is required to inventory the contents of [5]*5a lawfully impounded vehicle. State v. Keller, 265 Or 622, 629, 510 P2d 568 (1973). In Keller, this court distinguished the search of a fishing tackle box within a vehicle from a general inventory of the vehicle, holding the former invalid and stating that “there is a delicate balance between conflicting public and private interests — the need to search to protect law officers and car owners and the invasion of Fourth Amendment protected interests of private citizens.” 265 Or at 629.

Until today, this court has not further considered inventories of lawfully impounded vehicles. The Court of Appeals has held that when an automobile is lawfully impounded, the impounding officer may enter the vehicle and conduct an inventory of personal property. State v. Weeks, 29 Or App 351, 355, 563 P2d 760 (1977). In State v. Crosby, 35 Or App 617, 582 P2d 40 (1979), the Court of Appeals concluded that the locked trunk of a car was within the proper scope of an inventory. 35 Or App at 622.

The Supreme Court of the United States has reached the same result. In South Dakota v. Opperman, supra, the Supreme Court held that noninvestigative police inventories of automobiles lawfully within governmental custody are constitutional and not subject to the warrant requirement of the Fourth Amendment. The court concluded that the noncriminal context of inventories and the inapplicability in such a setting of the requirement of probable cause obviate the requirement of search warrants.

“With respect to noninvestigative police inventories of automobiles lawfully within governmental custody, however, the policies underlying the warrant requirement * * * are inapplicable.” Opperman, supra, 428 US at 370 n 5.

The court concluded that the Fourth Amendment permits a routine police inventory of the closed glove compartment of a locked automobile impounded for ordinary parking violations.3 In a separate concurring opinion, Justice Powell further explained why routine inventories should not be conditioned on warrants issued by a judicial officer.

[6]*6“Inventory searches * * * are not conducted in order to discover evidence of crime. The officer does not make a discretionary determination to search based on a judgment that certain conditions are present. Inventory searches are conducted in accordance with established police department rules or policy and occur whenever an automobile is seized. There are thus no special facts for a neutral magistrate to evaluate.” South Dakota v. Opperman, supra, 428 US at 383.

In a recent opinion, Illinois v. LaFayette, 462 US 640, 103 S Ct 2605, 77 L Ed 2d 65 (1983), the Supreme Court of the United States further explained the Fourth Amendment’s constraint on police administrative methods.

«* * * jn South Dakota v. Opperman, supra, * * * [w]e found no need to consider the existence of less intrusive means of protecting the police and the property in their custody — such as locking the car and impounding it in safe storage under guard. * * * [T]he real question is not what ‘could have been achieved,’ but whether the Fourth Amendment requires such steps; it is not our function to write a manual on administering routine, neutral procedures of the station house. Our role is to assure against violations of the Constitution.
“* * * We are hardly in a position to second guess police departments as to what practical administrative method will best deter theft by and false claims against its employees and preserve the security of the station house.”

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Cite This Page — Counsel Stack

Bluebook (online)
688 P.2d 832, 298 Or. 1, 1984 Ore. LEXIS 1727, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-atkinson-or-1984.