State v. Mangold

414 A.2d 1312, 82 N.J. 575, 1980 N.J. LEXIS 1343

• Court: Supreme Court of New Jersey
• Decided: May 19, 1980
• Status: Published

Opinions

The opinion of the Court was delivered by

CLIFFORD, J.

This case concerns the propriety of police automobile inventory procedures initiated subsequent to lawful vehicle impoundment. The issue, left unresolved by the recent decisions of this Court in State v. Slockbower, 79 N.J. 1 (1979), and State v. Ercolano, 79 N.J. 25 (1979), is whether, in the absence of a search warrant or indicia of criminality, law enforcement officials must afford one an opportunity to remove possessions from the impounded vehicle before conducting an inventory of its contents. We conclude that the contraband discovered in the course of an inventory conducted without first permitting vehicle occupants to utilize available alternative means of safeguarding their property is inadmissible as evidence in a criminal prosecution. Such police conduct amounts to an unreasonable and unwarranted intrusion into the privacy interests of those occupants in contravention of the Fourth Amendment to the United States Constitution and Article 1, paragraph 7 of the New Jersey Constitution (1947).

I

At approximately 8:00 p. m. on January 23, 1977 Lieutenant Raymond LaSalle of the Marlboro Township Police was summoned to the scene of a one-vehicle accident on Route 79 in Marlboro Village. Arriving at the accident with two other police officers Lieutenant LaSalle found that a van had apparently skidded on the icy road surface, struck a tree adjacent to the highway and come to rest so as to obstruct the northbound lane of Route 79. After an examination revealed the vehicle to be inoperable, LaSalle, without consulting with the occupants, arranged to have it towed from the scene.

While awaiting the arrival of the towing service the officer attempted to ascertain the identity of the occupants of the van and question them. Defendant LaBianco identified himself as being the owner of the vehicle, but said that he had been riding as a passenger at the time of the accident and that defendant Mangold had been driving.¹ During the course of this conversation LaSalle noted that LaBianca was acting in an “extremely agitated” manner. It appeared to him that LaBianca was under the influence of drugs or alcohol.

After conversing with LaBianca, the lieutenant returned to the van to make certain the ignition was off and to check for gasoline leakage. With the assistance of another officer, he then proceeded to inventory the contents of the van in accordance with the departmental policy of the Marlboro Police. While LaSalle was inspecting the van, defendants LaBianca and Mangold were seated in a police car with one of the investigating officers approximately seventy-five feet away. The defendants were neither consulted before the inventory was undertaken nor asked if there were any valuables in the vehicle which they wished to remove.

Upon entering the vehicle Lieutenant LaSalle’s attention was attracted to a portable television set situated between the driver’s seat and the passenger seat. On the floor of the van, near the television, he observed a closed Coleman cooler lying on its side. In righting the cooler the lieutenant determined that it was not empty. When he unlatched and opened the lid, LaSalle discovered the cooler contained several empty spark plug boxes, two eight packs of Rolling Rock beer, and a “large plastic bag containing green vegetable matter.” It was determined that the substance in the bag was marijuana and the defendants were arrested. A subsequent search of LaBianca uncovered additional marijuana.

Defendants were indicted for possession of a controlled dangerous substance in violation of N.J.S.A. 24:21 20a(4). Defendant LaBianca’s motion to suppress the evidence secured through the inventory of the van was granted by the trial judge, who found:

The alleged inventory in question was unreasonable under all of the circumstances considering the availability of the owners and the failure of the authorities to advise or consult them before proceeding with what was not only a search of the vehicle but also a search of the contents found in it.

********

Since there was no probable cause for such a search and it cannot be sustained as a proper inventory search because it has not been shown to be reasonable or necessary for the protection of the owner, the authorities or the towing service, the motion to suppress is granted. [156 N.J.Super. 382, 388 (Law Div.1978) (citation omitted).]²

On appeal from the suppression order the cases of all three co-defendants were consolidated. In a per curiam opinion the Appellate Division affirmed, adding:

Because of the frequency with which warrantless auto inventory searches are coming into question, we supplement [the trial judge’s opinion] by emphasizing that under the existing admitted facts (1) the police had no reason to suspect that defendants had committed any crime or that the Ford van contained any contraband, and (2) LaBianca, the owner of the van, was not under arrest and was fully capable of taking control of his few possessions in the van. We therefore hold that in warrantless auto inventory search cases, where the police have no reason to suspect that criminality is afoot, before the police may inventory the contents of a car when the owner is present, they should give the owner the opportunity of removing his possessions from the car. A failure to give an owner, present at the scene, an opportunity to remove his possessions would be an unwarranted and unreasonable intrusion into defendant’s privacy and violative of his constitutional rights. [164 N.J.Super. 74, 76 (1978).]

We granted certification, 81 N.J. 43 (1979), to review that holding and now affirm.

II

It must be emphasized at the outset that the State does not contend that the search executed in this case is justifiable upon any ground other than as an inventory search. The record demonstrates that the facts will not support the application of any of the other established exceptions to the Warrant Clause of the Fourth Amendment. Prior to the inventory there was no arrest, Chimel v. California, 395 U.S. 752, 757, 89 S.Ct. 2034, 2036, 23 L.Ed.2d 685 (1969), consent, Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968), or probable cause, Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Similarly inapplicable are the notions of plain view, Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), and hot pursuit, Warden v. Hayden, 387 U.S. , 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). Our inquiry is necessarily confined accordingly.

Warrantless, nonconsensual automobile inventory searches have frequently been the subject of judicial scrutiny by this and other courts. The signal case in the area, South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), broadly approved such intrusions when undertaken to secure the contents of automobiles lawfully in police custody. In Opperman, an automobile was impounded and towed by the police for parking violations. At the city impoundment lot a police officer observed several items of personal property inside the car. Pursuant to standard police procedure the officer unlocked the vehicle and began to inventory its contents. During that process a plastic bag containing marijuana was found in the unlocked glove compartment of the ear.

In upholding the inventory against constitutional challenge the United States Supreme Court determined that the automobile impoundment was sanctioned by the “ ‘community caretaking functions’ ” incumbent upon law enforcement officials in situations wherein the public safety and efficient movement of vehicular traffic are jeopardized. Id. at 368, 96 S.Ct. at 3096, 49 L.Ed.2d at 1005 (quoting Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 2528, 37 L.Ed.2d 706, 715 (1973)). As to the inventory the Court declared that such intrusions into automobiles legally “impounded or otherwise in lawful police custody” have been widely sustained as reasonable under the Fourth Amendment “where the process is aimed at securing or protecting the car and its contents.” Id. 428 U.S. at 373, 96 S.Ct. at 3099, 49 L.Ed.2d at 1007 (citing Cady v. Dombrowski, supra; Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967)). Noting that the inventory procedure was a product of routine police practice, the Court found it served a three-fold purpose: protection of the inventoried property while in police custody, shielding the police and storage bailees from false property claims, and safeguarding the police from potential danger. 428 U.S. at 369, 96 S.Ct. at 3097, 49 L.Ed.2d at 1005. In holding that such action was constitutionally permissible the Court declared:

The * * * police were indisputably engaged in a caretaking search of a lawfully impounded automobile. * * * The inventory was conducted only after the car had been impounded for multiple parking violations. The owner, having left his car illegally parked for an extended period, and thus subject to impoundment, was not present to make other arrangements for the safekeeping of his belongings. The inventory itself was prompted by the presence in plain view of a number of valuables inside the car. As in Cady, there is no suggestion whatever that this standard procedure, essentially like that followed throughout the country, was a pretext concealing an investigatory police motive. [Id. at 375-76, 96 S.Ct. at 3100, 49 L.Ed.2d at 1009 (citation and footnote omitted).]

The propriety of the police impoundment inventory procedures has recently been the target of challenge and judicial review in New Jersey. See State v. Slockbower, 79 N.J. 1 (1979); State v. Ercolano, 79 N.J. 25 (1979); State v. McDaniel, 156 N.J.Super. 347 (App.Div.1978). Last term we examined the status of the law relative to automobile impoundment. That assessment, undertaken in Slockbower and Ercolano, revealed a heightened judicial awareness of the privacy rights of automobile drivers in impoundment cases. See 79 N.J. at 8 15; id. at 33-34. In keeping with that concern, the Court subscribed to the view requiring “a factual showing of substantial police need, in the light of the constitutional regard for the privacy interests of automobile drivers, before approving the impoundment of a motor vehicle.” Id. at 8, 13; see id. at 33-34. The analysis focused on the legitimacy of the purpose underlying the impoundment and reasonableness of that action under the facts, including the availability of viable alternatives to police custody of the vehicle. A balance must be struck between the right to privacy and the requirements of legitimate police safekeeping functions. See id., 79 N.J. at 9. In that regard, Judge Conford, writing for the Court in Slockbower, noted that in certain situations where an automobile may be properly subject to impoundment, the police must examine the possibility of utilizing other means of securing the vehicle “rather than impounding] it against the will of the driver and thereafter searching] it routinely.” Id.

Reading Slockbower and Ercolano in conjunction with Opperman, it is apparent that two levels of inquiry are relevant to determine the propriety of inventory searches. The first determination to be made is whether, under Slockbower and Ercolano, the impoundment itself is justified. This threshold consideration is of fundamental importance as it is the act of impoundment which generates the necessity for the inventory. Absent the justification of a valid impoundment there can be no inventory. Slockbower, 79 N.J. at 13; Ercolano, 79 N.J. at 34.

With respect to the second level of inquiry, the legality of the inventory, it must be acknowledged from the first that motor vehicles are identifiable areas of expected privacy (albeit diminished) entitled to the protection traditionally afforded under the Fourth Amendment. Marshall v. Barlow’s Inc., 436 U.S. 307, 315 n. 10, 98 S.Ct. 1816, 1822 n. 10, 56 L.Ed.2d 305, 313 (1978); Coolidge v. New Hampshire, 403 U.S. 443, 461, 91 S.Ct. 2022, 2035, 29 L.Ed.2d 564, 580 (1971). Equally clear is the fact that despite their benign purposes, such inventories constitute searches subject to Fourth Amendment strictures. United States v. Lawson, 487 F.2d 468, 472 (8th Cir. 1973); Mozzetti v. Superior Court, 4 Cal.3d 699, 705-06, 484 P.2d 84, 88, 94 Cal. Rptr. 412, 416 (1971); State v. Goodrich, Minn., 256 N.W.2d 506, 507 (1977); State v. Slockbower, 79 N.J. at 12-13; State v. Ercolano, 79 N.J. at 45-46; Miles & Wefing, “The Automobile Search and the Fourth Amendment: A Troubled Relationship”, 5 Seton Hall L.Rev. 105, 138 (1972); 87 Harv.L.Rev. 835, 850 (1974); see Terry v. Ohio, 392 U.S. 1, 18 n. 15, 88 S.Ct. 1868, 1878 n. 15, 20 L.Ed.2d 889, 903-04 (1968). Contra, People v. Sullivan, 29 N.Y.2d 69, 272 N.E.2d 464, 323 N.Y.S.2d 945 (1971). Mere lawful custody of an impounded vehicle does not ipso facto dispense with the constitutional requirement of reasonableness mandated in all warrantless search and seizure cases. See Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967); Mozzetti, supra; Wagner v. Commonwealth, 581 S.W.2d 352 (Ky.Sup.Ct.1979). Accordingly, it is necessary to determine whether the inventory was a reasonable one under all the circumstances. See United States v. Chadwick, 433 U.S. 1, 9, 97 S.Ct. 2476, 2482, 53 L.Ed.2d 538, 547 (1977); Opperman, 428 U.S. at 372-76, 96 S.Ct. at 3098 3101, 49 L.Ed.2d at 1007-09.

If the police custody of the vehicle is shown to be lawful, then the inventory procedure itself must be scrutinized relative to the reasonableness standards enunciated in Opperman. 428 U.S. at 375, 96 S.Ct. at 3100, 49 L.Ed.2d at 1009. It must be demonstrated that the intrusion was in fact an inventory initiated pursuant to the designated objectives set forth in Opperman. Ante at 581-582. To that end a variety of details are significant. Factors such as the scope of the search, the procedure used, and the availability of less intrusive alternatives are of particular importance. Id. at 375-76, 96 S.Ct. at 3100-3101, 49 L.Ed.2d at 1009. Their presence, or absence, indicate whether the inventory in question was carried out with the intent to foster the protective functions it was designed to promote. See id. Such considerations will also weigh heavily in striking a balance between the governmental interest advanced to justify the intrusion and the individual citizen’s constitutionally protected privacy interest. See id. at 378, 96 S.Ct. at 3101, 49 L.Ed.2d at 1010 (Powell, J., concurring).

hi

The police impoundment of the defendant’s van was lawful and proper. After the accident the van came to rest in a position completely obstructing the northbound lane of Route 79. The vehicle was inoperable. As such it posed a serious threat to public safety.³ Further, the impoundment and removal of the disabled van was authorized by statute. N.J.S.A. 39:4-136. In sum, the action taken was reasonable and necessary under the circumstances, and in accordance with the “community caretaking functions” of the involved law enforcement officials. See Slockbower, supra, 79 N.J. at 7-12; Ercolano, supra, 79 N.J. at 33-34. See also Opperman, supra, 428 U.S. 374 75, 96 S.Ct. at 3099-3100, 49 L.Ed.2d at 1008; Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 2528, 37 L.Ed.2d 706, 714-15 (1973).

We turn now to the inventory. Utilizing the framework of review delineated in Opperman an examination of the record reveals that the inventory conducted by the Marlboro Police was in accordance with standard departmental procedure. The van was inventoried after it had been lawfully impounded and was awaiting the arrival of the towing service. Every item of value was accounted for and properly listed on a standard police inventory form. Thus, on this level, it does not appear that the inventory was a subterfuge for a warrantless investigatory search.⁴

Despite the apparent propriety of the routine procedures employed, however, we find the inventory in this case to be fatally flawed by the failure of the police to discuss the disposition of the van’s contents with its owner. As noted by the courts below, the defendants were present and physically capable of making arrangements for the safekeeping of their belongings. If in fact the principle justifications for an inventory are to protect the property in the vehicle and to shield the authorities from false claims relating to those items, it would seem only reasonable to consult with the owner or temporary custodian of the vehicle when he is present at the time of the search. As stated by the trial judge:

The owner may want to remove his property where he can do so easily; he may want to accompany the vehicle and its contents, or he may have other adequate means of safeguarding his property or absolving the authorities and the towing service of responsibility. The reasonableness of invading his privacy must be viewed in light of all the circumstances. [156 N.J.Super. at 387.]

The absence of the vehicle owner was an express consideration in the Opperman court’s assessment of the reasonableness of the inventory in that case. 428 U.S. at 375, 96 S.Ct. at 3100, 49 L.Ed.2d at 1009; id. at 384, 96 S.Ct. at 3104, 49 L.Ed.2d at 1014. It has also been of crucial concern in similar determinations by other courts. People v. Counterman, 556 P.2d 481, 484-85 (Colo.Sup.Ct.1976); Wagner v. Commonwealth, 581 S.W.2d 352, 357 (Ky.Sup.Ct.1979); State v. Jewell, 338 So.2d 633, 639 (La.Sup.Ct.1979); State v. Peterson, 583 S.W.2d 277, 281-82 (Mo.Ct.App.1979). We believe it to be equally decisive in this case.

The officers involved in the inventory here testified that where possible they normally afford occupants of impounded vehicles an opportunity to remove their personal effects before cataloguing the contents. They claimed, however, that a similar opportunity -was not extended to the defendants due to exigent circumstances resulting from the accident and the icy road conditions. We are not persuaded. In questioning the reasonableness of the officers’ actions we note that although faced with “emergent” traffic conditions after the accident, none of the officers detailed to the scene found it necessary to attempt to direct that traffic. Likewise do we reject any suggestion that the slick road surface made it too onerous a task to walk 75 feet from the van to where the defendants were seated in a patrol car. Such claims pale against the defendants’ interest in the privacy of the contents of the van. The defendants were not under arrest, injured or incapacitated. The items in the van were not many in number nor burdensome in nature. The defendants were fully capable of removing them had they reasonably been given the opportunity to do so. They were not.

In determining the reasonableness of any search a balance must be struck between governmental necessity and individual privacy. Impoundment inventories serve significant and necessary protective functions. Nevertheless, “even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.” Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231, 237 (1969). The inventory search procedure should be no more intrusive than reasonably necessary to respond to the protective functions which fostered its creation. See United States v. Edwards, 577 F.2d 883, 893 (5th Cir. 1978 (en banc)). Accordingly, we hold that if a vehicle is lawfully impounded and its owner or permissive user is present, that person must be given the option of either consenting to the inventory or making his own arrangements for the safekeeping of the property contained in the vehicle. Absent consent or alternative security provisions, an inventory may be not undertaken. In such cases the vehicle owner or user will be presumed to have assumed the risk for any claims of property loss or theft arising from the impoundment. This determination is the natural corollary to our decisions in Slockbower and Ercolano. We view it as being representative of the judicial commitment to limiting unwarranted governmental infringement, well-intentioned or otherwise, of privacy interests.

Affirmed.

1 it was later determined that defendant Asciutto had also been a passenger in the van.

2 Similar motions were subsequently granted on behalf of co-defendants Mangold and Asciutto. It is unclear on what grounds Mangold and Asciutto had standing to protest the seizures. See Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1979); State v. List, 166 N.J.Super. 368 (Law Div.1979). But see State v. Barrett, 170 N.J.Super. 211 (Law Div.1979). However, the State did not raise the issue below nor in this Court and consequently we do not reach it.

3 Adding to the possible danger was a crowd of approximately fifty-five people who had been attending a meeting at a nearby fire hall and were drawn to the scene by the sound of the crash.

4 In view of our conclusion here today we do not reach the question of whether the search of the cooler itself was reasonable. But see United States v. Schleis, 582 F.2d 1166 (8th Cir. 1978); State v. Daniel, 589 P.2d 408 (Alas.Sup.Ct.1979); Mooney v. State, 243 Ga. 373, 254 S.E.2d 337 (Ga.Sup.Ct.1979).