The People v. Rakeem Douglas

• Court: New York Court of Appeals
• Decided: October 24, 2023
• Docket: 68
• Status: Published

Opinion

State of New York OPINION Court of Appeals This opinion is uncorrected and subject to revision before publication in the New York Reports.

No. 68 The People &c., Respondent, v. Rakeem Douglas, Appellant.

Stephen R. Strother, for appellant. Stephen J. Kress, for respondent.

SINGAS, J.:

During an inventory search of defendant’s vehicle, conducted pursuant to the New

York City Police Department’s (NYPD) standardized, written inventory search protocol,

the police recovered a firearm. Defendant contends that this protocol, on its face, violates

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both the Federal and State Constitutions. We hold that defendant’s arguments fail to

overcome the People’s proof establishing a valid inventory search protocol.

I.

In October 2015, two NYPD officers observed defendant Rakeem Douglas commit

multiple traffic infractions while driving. The officers stopped defendant, discovered a

gravity knife in his pocket (which was illegal at the time), and subsequently arrested him.

Defendant and his vehicle were transported to the precinct, where the officers conducted

an inventory search of the vehicle, during which they recovered a firearm from the trunk.

The police vouchered the firearm, the other items located in the vehicle, and the vehicle

itself.

Defendant moved to suppress the firearm, arguing that the NYPD’s inventory search

protocol was unconstitutional because it gives officers too much discretion in conducting

inventory searches and that the searching officers failed to create a meaningful inventory

of defendant’s items. At the suppression hearing, the People introduced the NYPD’s

written inventory search protocol as set forth in section 218-13 of the NYPD Patrol Guide.

The protocol instructs officers to first “[s]earch the interior of the vehicle thoroughly,”

“includ[ing] any area that may contain valuables.” The protocol lists 10 areas within the

car that must be searched, such as the glove compartment and trunk, but does not limit the

searching officers to those spaces. Second, section 218-13 directs officers to force open

the “trunk, glove compartment, etc. only if it can be done with minimal damage” except in

particular situations including where officers “[r]easonably suspect that the item contains

weapons, explosives, hazardous materials or contraband.” Lastly, the protocol requires

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officers to remove the valuables from the vehicle and invoice, or “voucher,” the property

on a specifically referenced invoice form. Section 218-13 instructs officers to list property

of little value inside the vehicle, “within reason,” in their activity log and cross reference

the property “to the invoice number covering any valuables removed.” Both officers

testified that the purpose of an inventory search is, in part, to secure a defendant’s items.

The arresting officer further testified that it is an officer’s duty to safeguard a defendant’s

recovered items prior to vouchering the items.

Supreme Court denied defendant’s motion to suppress, concluding that the NYPD’s

inventory search protocol was constitutionally sufficient, and the officers acted in

accordance with the protocol in executing the inventory search. Defendant subsequently

pleaded guilty to criminal possession of a weapon in the second degree and was sentenced,

as a second felony offender, to a determinate prison term of 6 years followed by 5 years of

postrelease supervision. The Appellate Division affirmed the judgment, agreeing with

Supreme Court that “the officers followed a valid procedure for an inventory search of

defendant’s car” (193 AD3d 622, 622 [1st Dept 2021]). Here, defendant concedes that the

officers complied with the challenged protocol and has otherwise abandoned any as-

applied challenge.1

1 Because defendant poses a facial challenge to the constitutionality of the NYPD protocol, we do not address the particular circumstances of the search in this case, including the span of eleven hours between the discovery of the gun and the completion of the vouchering process or whether the property recovered here was adequately secured or itemized. Although these issues may establish the basis for an as-applied challenge (see People v Galak, 80 NY2d 715, 720-721 [1993]; Illinois v Lafayette, 462 U.S. 640, 646 [1983] [indicating a standardized procedure for inventorying items “as soon as reasonable after reaching the stationhouse . . . inhibits theft or careless handling” of the relevant property]), -3- -4- No. 68

II.

“Following a lawful arrest of a driver of a vehicle that is required to be impounded,

the police may conduct an inventory search of the vehicle” (People v Padilla, 21 NY3d

268, 272 [2013]). An inventory search is “a search designed to properly catalogue the

contents of the item searched” (People v Johnson, 1 NY3d 252, 256 [2003]). Because a

warrant based on probable cause is not required to execute an inventory search, any

inventory search must “be conducted according to a familiar routine procedure” (Galak,

80 NY2d at 719, citing Colorado v Bertine, 479 US 367, 375 [1987]). An inventory search

procedure must be designed to meet three specific objectives: “to protect the property of

the defendant, to protect the police against any claim of lost property, and to protect police

personnel and others from any dangerous instruments” (Johnson, 1 NY3d at 256; see also

Lafayette, 462 US at 646). The protocol must “limit the discretion of the officer in the

field” (Galak, 80 NY2d at 719). There is no requirement that an inventory search protocol

be written (see id. at 721), and courts will not “micromanage the procedures used to search

properly impounded cars” (People v Walker, 20 NY3d 122, 127 [2012]). “[R]easonable

police regulations relating to inventory procedures administered in good faith satisfy the

Fourth Amendment, even though courts might as a matter of hindsight be able to devise

equally reasonable rules requiring a different procedure” (Bertine, 479 US at 374).

no such challenge is advanced here. The dissent’s discussion of the specific facts of this search (see dissenting op at 2-4, 8) is not pertinent to the resolution of the case.

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It is the People’s burden to establish the validity of the protocol itself—specifically,

that the procedure meets those three objectives and sufficiently limits the discretion of

searching officers (see Johnson, 1 NY3d at 256). The People must also demonstrate that

these “particular officer[s] conducted this search properly and in compliance with

established procedures” (id., quoting Galak, 80 NY2d at 719).

Here, the People sustained their initial burden of demonstrating that the protocol

meets “the constitutional minimum” (Walker, 20 NY3d at 127; see People v Padilla, 21

NY3d 268, 272 [2013]).

Accordingly, the order of the Appellate Division should be affirmed.

-5- RIVERA, J. (dissenting):

Several officers from the New York City Police Department (“NYPD”) arrested

defendant, impounded the vehicle he was driving, and took the vehicle to a precinct. There,

in addition to searching defendant, the officers searched the vehicle in the parking lot and

placed the property they found inside a plastic bag for 11 hours before preparing vouchers

listing the items recovered from the car and defendant’s person. The officers conducted the

search pursuant to the NYPD’s Patrol Guide (“Guide”), which directs an officer to search

the interior, and, if done with minimal damage, force the trunk and glove compartment

open and remove all valuables and invoice them on separate forms. Whatever may be the

virtues of the Guide as adequately directing the physical search of a vehicle, the Guide is

wholly inadequate at cabining an officer’s discretion regarding the handling of recovered

property because it does not instruct the officer on how much time may pass between the

search and the invoicing, or instruct them on how and where to safeguard the property.

Without such instruction the Guide cannot facilitate the narrow permissible purposes of

inventory searches—protecting property, ensuring against theft claims, and protecting

officers and others against dangerous items. Therefore, the Guide is unconstitutional on its

face.

I dissent.

Defendant was charged with two weapons counts—based on a firearm recovered

from the car and a gravity knife officers observed on his person during the stop—and one

count of unlawfully possessing marihuana, which he admitted to at the precinct. As relevant

to this appeal, defendant moved to suppress the gun, claiming that the officers recovered it

in violation of his constitutional rights.

At the suppression hearing, the only written protocol the prosecution entered into

evidence was section 218-33 of the Guide, titled “Inventory Searches of Automobiles and

Other Property.” This section describes the purpose of the search as threefold: “To protect

property, ensure against unwarranted claims of theft, and protect uniformed members of

the service and others against dangerous instrumentalities.” The section further instructs

officers that, “[w]henever any property comes into the custody of [the NYPD] an inventory

search will be conducted” in three steps. First, section 218-33 instructs officers to “[s]earch

the interior of the vehicle thoroughly,” and provides a nonexhaustive list of interior areas

(e.g. glove compartment, console, trunk, air vents, ashtrays). Second, it directs officers to

force open the trunk and glove compartment “only if it can be done with minimal damage,”

unless certain conditions exist not applicable here. Third, officers must “[r]emove all

valuables from the vehicle and invoice on a separate Property Clerk Invoice.”

Both officers who conducted the underlying search in the precinct’s parking lot

testified that the Guide requires a search to follow these three steps. One of the officers

admitted on cross-examination that the Guide does not require officers to

contemporaneously list the items recovered. Both officers testified that they did not

compile a contemporaneous list. Instead, they placed the items they removed from the

vehicle in a plastic bag along with property recovered from defendant’s person and brought

the bag into the precinct. Once inside, they placed the bag on the floor. Neither officer

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testified that they secured the bag during the 11 hours before one of them finally vouchered

the items.

Defendant argues on appeal that the Guide submitted into evidence and described

by the officers during the hearing is facially unconstitutional because it furnishes officers

with unfettered discretion regarding the recovery and vouchering of property, thereby

defeating the purposes of inventory searches.1 Defendant is correct.

The Fourth Amendment to the United States Constitution and Article I, § 12 of the

New York Constitution prohibit “unreasonable searches and seizures” (US Const Amend

IV; NY Const, art I, § 12). “Where a search is undertaken by law enforcement officials to

discover evidence of criminal wrongdoing, . . . reasonableness generally requires the

obtaining of a judicial warrant” (Vernonia School Dist. 47J v Acton, 515 US 646, 653

[1995]). The warrant ensures that any supporting inferences are “drawn by a neutral and

detached magistrate instead of being judged by the officer engaged in the often competitive

enterprise of ferreting out crime” (Johnson v United States, 333 US 10, 14 [1948]). Thus,

“[i]n the absence of a warrant, a search is reasonable only if it falls within a specific

exception to the warrant requirement” (Riley v California, 573 US 373, 382 [2014]).

1 Defendant has abandoned his as-applied constitutional challenge and I therefore do not consider whether, regardless of the Guide’s directives, the officers failed to conduct the inventory search in a constitutional manner. Of course, to succeed on a facial challenge, defendant “must establish that no set of circumstances exists under which the [Guide] would be valid” (Owner Operator Ind. Drivers Assn., Inc. v New York State Dept. of Transportation, 40 NY3d 55, 61 [2023] [internal quotation marks omitted]). -4- -5- No. 68

An “inventory search” of persons and automobiles “at a police station” is “now a

well-defined exception to the warrant requirement” (Colorado v Bertine, 479 US 367,

370-371 [1987]). “[L]aw enforcement officers may conduct an inventory search of an

impounded automobile without a warrant, provided the search is conducted according to a

‘single familiar standard’ or procedure established by the police agency” (People v Galak,

80 NY2d 715, 716 [1993] [internal quotation marks omitted], quoting Bertine, 479 US at

375; accord Illinois v Lafayette, 462 US 640, 648 [1983]; People v Gonzalez, 62 NY2d

386, 390 [1984]). “An inventory search is exactly what its name suggests, a search designed

to properly catalogue the contents of the item searched” (People v Johnson, 1 NY3d 252,

256 [2003]).

“Three specific objectives are advanced by inventory searches: protecting an

owner’s property while it is in the custody of the police; insuring police against claims of

lost, stolen, or vandalized property; and guarding police and others from dangerous

instrumentalities that would otherwise go undetected” (Galak, 80 NY2d at 718, citing

Bertine, 479 US at 372, and Lafayette, 462 US at 646; see Florida v Wells, 495 US 1, 4

[1990]; South Dakota v Opperman, 428 US 364, 369 [1976]). Thus, “the hallmark of an

inventory search” is “a meaningful inventory list” (Johnson, 1 NY3d at 256).

“[A]n inventory search [must] be conducted according to a familiar routine

procedure and . . . the procedure [must] meet two standards of reasonableness” (Galak, 80

NY2d at 719, citing Bertine, 479 US at 375). “First, the procedure must be rationally

designed to meet the objectives that justify the search in the first place[,]” and “[s]econd,

the procedure must limit the discretion of the officer in the field” (id.; see also Wells, 495

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US at 4 [“(T)wo elements must be examined: first, the relationship between the search

procedure adopted and the governmental objectives that justify the intrusion and, second,

the adequacy of the controls on the officer’s discretion”]). “[I]t is an established procedure

clearly limiting the conduct of individual officers that assures that the searches are carried

out consistently and reasonably and do not become little more than an excuse for general

rummaging to discover incriminating evidence” (Galak, 80 NY2d at 719). Moreover, any

discretion must be cabined by “standard criteria and [exercised] on the basis of something

other than suspicion of evidence of criminal activity” (Bertine, 479 US at 375).

Although parties mounting facial challenges typically bear “the extraordinary

burden of proving beyond a reasonable doubt that the challenged provision suffers

wholesale constitutional impairment” (Owner Operator Ind. Drivers Assn., Inc., 40 NY3d

at 61), in the suppression context, the prosecution always has “the burden of demonstrating

the validity of the inventory search” (People v Padilla, 21 NY3d 268, 272 [2013], citing

People v Gomez, 13 NY3d 6, 11 [2009]). “All warrantless searches presumptively are

unreasonable per se, and, thus, where a warrant has not been obtained,” the prosecution has

“the burden of overcoming this presumption of unreasonableness” (People v Jimenez, 22

NY3d 717, 721 [2014] [internal quotation marks and alterations omitted]).

III.

The prosecution failed to show that the Guide it entered into evidence is facially

constitutional. Section 218-33 informs officers of the purposes of inventory searches, and

establishes steps for examining the vehicle’s interior and invoicing the recovered items

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using a specific voucher form. During the hearing, the officers confirmed that the Guide

requires each of these steps.

The Guide does not instruct officers on how much time they may take to voucher

property after they recover it. In other words, the Guide contains neither an outer limit nor

guidance as to what would be a reasonable amount of time within which to complete the

inventory. Crucially, the Guide is also silent as to how and where to safeguard the property

once removed and prior to vouchering. The Guide thus leaves it wholly to the discretion of

the officers to determine how and when to comply with the Guide’s three-step process in

furtherance of the inventory search purposes.

Contrary to the District Attorney’s argument, the burden was on the prosecutor, not

defendant, to show that every step of the protocol complies with federal and state mandates

given that this was a warrantless search (see Jimenez, 22 NY3d at 721). The District

Attorney’s claim that one of the officers testified that they were under a duty to safeguard

the evidence does not save the protocol. The officer’s general statement failed to explain

how an officer would comply with that safeguarding duty under the commands of the

protocol. The officer could never establish that connection here because the Guide under

which he operated makes no mention of a duty to safeguard. In fact, it never even mentions

safeguarding the property at all or how to accomplish this protective task. And the

prosecutor failed to provide any other source for this supposed safeguarding duty or a

source with uniform standards and adequate directives to cabin an officer’s discretion in

this regard.

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For example, there is no guidance on whether an officer must keep the property in

a sealed container and, if so, how to seal it, and whether to keep the container close to them

at all times until the vouchering is completed. There is no information on what areas in a

precinct are appropriate for storage should the officer be delayed in completing the search

and property vouchers. And there is no directive as to what constitutes an

officially-recognized, adequate reason to delay completion of this warrantless search.2 In

sum, the Guide does not cabin the discretion an officer may exercise once they have

searched the vehicle and recovered property. Thus, the prosecution failed to meet its burden

of showing how the Guide “clearly limit[ed] the conduct of individual officers” (Galak, 80

NY2d at 719) according to “standard criteria” (Bertine, 479 US at 375).

The NYPD’s facially unconstitutional protocol here permitted a search and

vouchering that took 11 hours to complete in two separate locations.3 During several of

those hours, the officers left the recovered property in a plastic bag somewhere on the floor

of the precinct. The officers failed to prepare a contemporaneous list of the property

removed from the vehicle and the list they eventually produced fails to distinguish between

the property removed from the vehicle and items recovered from defendant’s person. At

2 Regardless of whether routine police matters are a basis to stop an unfinished inventory search, no policy was submitted at the suppression hearing instructing an officer on how to determine which non-emergency matters justify interruption of the search and vouchering. 3 The majority misunderstands my purpose in making these observations (see majority op at 3 n 1). Although the “specific facts of this search” of course have no bearing on this purely facial challenge (id.), the prosecution’s reliance on the Guide to defend this unsupervised and temporally limitless search reinforces the Guide’s facial unconstitutionality. -8- -9- No. 68

the hearing, the officer relied on his recollection of where each item was recovered. As a

consequence, the property was vulnerable to destruction, theft and tampering—

undermining the purpose of the inventory and creating the opportunity for the type of

mishandling that the Guide is designed to avoid.

Defendant contends that the Appellate Division tolerates significant delays in

completion of vehicular inventory searches. As an example, he cites People v Echevarria,

where the Appellate Division concluded, without analysis, that “a delay in completing the

inventory procedure was satisfactorily explained” (173 AD3d 638, 639 [1st Dept 2019]).

The case does not obviously illustrate defendant’s point, but even so, it is not clear from

this one decision that a pattern has developed in our intermediate appellate and trial courts

of setting the bar below the constitutional floor. While our courts should not micromanage

the NYPD, ensuring compliance with the law is not micromanagement; it is judicial

oversight, a distinction the majority elides by approving this protocol.

IV.

The law permits warrantless inventory vehicle searches of impounded vehicles for

limited purposes of protecting property, ensuring against theft claims, and protecting

officers and others against dangerous items. The prosecution here failed to establish that

the Guide, on its face, adopts a constitutional method for accomplishing these limited

objectives.

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Order affirmed. Opinion by Judge Singas. Chief Judge Wilson and Judges Garcia, Cannataro, Troutman and Halligan concur. Judge Rivera dissents in an opinion.

Decided October 24, 2023

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