• Inventory searches of an impounded vehicle 
• Inventory searches conducted as an excuse to look for evidence of criminal wrongdoing 

An inventory search of a vehicle done upon lawful impoundment and in accordance with a law enforcement agency’s impoundment policies must be limited to establishing an inventory of the vehicle’s contents. A searching officer’s subjective intent is relevant to the issue of why the vehicle was searched. A warrantless inventory search of a vehicle done to look for evidence of criminal wrongdoing violates the Fourth Amendment, requiring suppression of any evidence found. 

A San Bernardino County sheriff’s deputy attempted to stop the defendant, Jonathan Anderson, at about 2 a.m. for a partially obscured license plate in violation of Vehicle Code § 5201. The defendant initially failed to stop, turning abruptly into a dead-end street, and accelerated to the end of the road. As the deputy called for backup, the defendant turned into an apartment complex, and then into the driveway of a private residence where (evidently having run out of places to go) he stopped and got out of his truck. The total elapsed time between when the deputy first lit up his emergency lights to when the defendant stopped was 30 to 45 seconds. Believing that the defendant had attempted to flee, an assumption the defendant denied, the deputy took him into custody at gun point and, upon arrival of a second deputy, handcuffed him.  

The defendant claimed he didn’t see the deputy’s emergency lights. He also claimed to be parked in the driveway of a friend. The defendant admitted his driver’s license was expired, verified via radio. It was also learned that the defendant was a “career criminal” as a five-time convicted felon. After the resident of the house told deputies he did not know the defendant and he wanted the vehicle removed from his driveway, the deputies decided to impound the defendant’s truck pursuant to VC § 14607.6, impoundment of the vehicle of an unlicensed driver.  

In preparing to tow the vehicle, an inventory search was initiated, over the defendant’s express objection, resulting in the recovery of a loaded handgun from under the driver’s seat. The defendant was arrested for being a felon in possession of a firearm.  

As the first deputy took the defendant to jail, a second filled out the paperwork related to the impoundment, pursuant to the standard administrative procedural requirements as described in the San Bernardino County Sherriff’s Department manual. This included inventorying the contents of the vehicle. In so doing, the deputy checked off boxes reflecting the presence of two radios and a firearm. The deputy failed, however, to document other property found in the car, although pictures were taken of the contents as visible in the passenger area.  

The defendant was charged in federal court with one count of being a felon in possession of a firearm, per 18 U.S.C. § 922(g)(1). After his motion to suppress the gun was denied (the defendant arguing primarily that the deputies initiated the search of his truck before verifying with the homeowner that he did not know the defendant; a witness credibility issue decided by the trial court in the deputies’ favor), the defendant pled guilty and was sentenced to 77 months in prison. The defendant appealed. 

In late 2022, the Ninth Circuit Court of Appeals, in a 2-to-1 decision, initially affirmed the trial court’s ruling. (United States v. Anderson (9th Cir. Dec. 29, 2022) 56 F.4th 748; previously briefed at California Legal Update, Vol. 28, #3; March 7, 2023.) That decision was subsequently vacated and a rehearing by an en banc (11-justice) panel was held, with this new decision as briefed here issued in its place.  

In this new decision, the Ninth Circuit reversed the trial court in a 6-to-5 decision. The issue on appeal concerned the problem of attempting to draw a line between a lawful post-impound inventory search (for which neither probable cause nor a search warrant is necessary) and an illegal investigatory search of a vehicle (which requires probable cause and a warrant).  

The court first noted the basic rule that law enforcement must generally obtain a warrant, based upon a showing of probable cause, before conducting a search. Among the recognized exceptions to this rule is when it is an automobile being searched, and that vehicle is impounded as a part of law enforcement’s “community caretaking” function.  

Pursuant to the “community caretaking” doctrine: “The authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge.” (Dakota v. Opperman (1976) 428 U.S. 364, at 369.) Upon removing the vehicle in issue and impounding it, an inventory search of that vehicle is allowed as a “well-defined exception to the warrant requirement of the Fourth Amendment.” (Colorado v. Bertine (1987) 479 U.S. 367, 371.)  

Such an inventory search is recognized by the courts as necessary for a number of However, post impoundment inventory searches are only lawful if done according to “standardized procedures” as established by the involved law enforcement agency. (Harris v. United States, supra., and United States v. Torres (9th Cir. 2016) 828 F.3rd 1113, 1118.) As such, the Court here noted that “a standard (department) inventory procedure goes a long way in determining the reasonableness of a search.” (Florida v. Wells (1990) 495 U.S. 1, 3-4.) However, inventory searches are just that: One that reflects a police department’s policy (whether in writing, or orally) that is “designed to produce an inventory.” Such a policy may not be used as an excuse, however, to purposely seek evidence of criminal wrongdoing. In determining whether a particular inventory search was illegally used to seek evidence of criminal conduct, the Court noted that “(t)his is the rare context where the Fourth Amendment analysis is not purely objective—(an officer’s) subjective motivations are material.” A court is therefore required to evaluate the searching officer’s subjective intent in conducting an inventory search upon which it can then make a determination as to whether the search was done for the purpose of establishing an inventory (which is legal), or as an excuse to conduct a criminal investigation (which, absent probable cause, a warrant, or some other exception to the warrant requirement, is illegal). In order to determine this intent, all the surrounding circumstances must be considered. Where you draw that hypothetical line between a lawful warrantless inventory search and an unlawful search done for the purpose of seeking evidence of criminal wrongdoing is the issue upon which the justices of this en banc court disagreed. The Government (i.e., the prosecution), of course, bears the burden of proving that the search of the defendant’s vehicle was lawful.

Disagreeing with the trial court (as well as the previous three-judge decision of this same court), the majority of the justices on this panel determined that the government failed to meet its burden in this case. An officer’s degree of compliance with an agency’s inventory polices is relevant in determining whether the officer acted in furtherance of an administrative purpose or solely for investigatory purposes under the guise of conducting an inventory. “Perfect compliance” with that policy is not required. As such, it has been ruled in prior cases that “minor noncompliance with department policies does not invalidate an otherwise lawful inventory search.” However, there is a limit to how far an officer can stray from a standard procedure that was adopted to serve the recognized administrative purposes underlying the inventory-search exception and still justify the search as a good-faith, administrative action. It was also noted that an officer’s failure to create an inventory can—but may not always—suggest that something else motivated the search. It still has to be shown, however, that the inventorying officers’ primary motivation was to produce an inventory of the vehicle’s contents and not merely to seek evidence of criminal wrongdoing.

In this case, the Court first noted that the Santa Bernardino County Sheriff’s Department has a written policy governing inventory searches, and that the deputies, at least to some degree, failed to fully comply with that policy. Thus, while “substantial compliance” with a police department’s policies is often sufficient, the Court ruled that in this case, what the deputies did and did not do in this regard evidenced a primary intent to look for evidence of criminal wrongdoing as opposed to merely safeguarding the contents of the defendant’s truck. As noted above, the inventorying deputy listed only the presence of two radios and a firearm found in the truck, ignoring other items. Specifically, the deputy failed to inventory a speaker, tools, two pairs of sunglasses, a watch, cologne, and other miscellaneous items. And while photographs were taken of the interior of the truck, the deputy’s subjective intent in taking those photographs (which also did not show all of the property found in the truck) appears to have been done for the purpose of documenting the truck’s interior for use in a resulting criminal case and not to establish an inventory. In the crime report filed by the deputies, for instance, they listed the firearm and ammunition taken from the defendant’s truck as “evidence,” indicating that these items “were seized and treated specifically as evidence of a crime—not as property (to be held) for safekeeping.” The Court also rejected the Government’s argument that those items not listed were excluded from the inventory because they were of insignificant value in that “SBCSD’s inventory-search policy does not give deputies discretion to decide what property should be listed.” In summary, the Court held as follows: “The bottom line is simple: the deputies’ recording of a single item used as evidence (i.e., the firearm), despite SBCSD’s procedure requiring that they inventory ‘any personal property contained within the vehicle’ was not mere ‘minor’ or ‘slipshod’ noncompliance. (Citations) It was a material deviation from SBCSD’s standard inventory procedure.” The Court further noted that before the truck’s impoundment, the deputies had discovered what they viewed as a “[l]ot of . . . money” in the defendant’s wallet (around two hundred dollars), questioned why the defendant had gloves in his truck, why his truck was wet, and determined through a radio check that he was a career criminal.” With this information, along with the defendant’s apparent attempt to avoid being stopped in the first place, the deputies already suspected that he had been engaged in some sort of criminal behavior, supplying them with the motivation to try to determine what that behavior might have been. The Court also found it significant that the search of the defendant’s truck occurred prior to it being towed, as opposed to afterwards as typically occurs with most lawful impoundments. “(W)here (the defendant) was secured in the back of a patrol car and there was no immediate exigency related to securing the truck and its contents, (the fact that the impoundment occurred before towing) is part of the totality informing whether the ‘inventory’ search conducted here was an excuse ‘to rummage for evidence.’” Based upon all this, and with the only item listed being something (again, the loaded firearm, along with two radios) intended for use in a criminal case, these facts suggested strongly that the search of the defendant’s truck was conducted for purposes of collecting evidence of criminal wrongdoing, and not as a lawful inventory search of a vehicle upon impoundment. Therefore, the firearm should have been suppressed as the product of this warrantless search of the defendant’s truck.  

However, post-impoundment inventory searches are only lawful if done according to “standardized procedures” as established by the involved law enforcement agency. (Harris v. United States, supra., and United States v. Torres (9th Cir. 2016) 828 F.3rd 1113, 1118.) As such, the court here noted that “a standard (department) inventory procedure goes a long way in determining the reasonableness of a search.” (Florida v. Wells (1990) 495 U.S. 1, 3-4.)  

However, inventory searches are just that: One that reflects a police department’s policy (whether in writing, or orally) that is “designed to produce an inventory.” Such a policy may not be used as an excuse to purposely seek evidence of criminal wrongdoing. In determining whether a particular inventory search was illegally used to seek evidence of criminal conduct, the court noted that “(t)his is the rare context where the Fourth Amendment analysis is not purely objective – (an officer’s) subjective motivations are material.”  

A court is therefore required to evaluate the searching officer’s subjective intent in conducting an inventory search upon which it can then make a determination as to whether the search was done to establish an inventory (which is legal), or as an excuse to conduct a criminal investigation (which, absent probable cause, a warrant, or some other exception to the warrant requirement, is illegal).  

To determine this, the surrounding circumstances must be considered. Where you draw that line between a lawful warrantless inventory search and an unlawful search for the purpose of seeking evidence of criminal wrongdoing is the issue upon which the justices of this en banc court disagreed.  

The prosecution, of course, bears the burden of proving that the search of the defendant’s vehicle was lawful. Disagreeing with the trial court, as well as the previous three-judge decision of this same court, the majority on this panel determined the government failed to meet its burden in this case.  

An officer’s degree of compliance with an agency’s inventory polices is relevant in determining whether the officer acted in furtherance of an administrative purpose or solely for investigatory purposes under the guise of conducting an inventory. Perfect compliance with that policy is not required. As such, it has been ruled in prior cases that “minor noncompliance with department policies does not invalidate an otherwise lawful inventory search.”  

However, there is a limit to how far an officer can stray from a standard procedure that was adopted to serve the recognized administrative purposes underlying the inventory-search exception and still justify the search as a good-faith, administrative action.  

It was also noted that an officer’s failure to create an inventory can – but may not always – suggest something else motivated the search. It must be shown, however, that the inventorying officer’s primary motivation was to produce an inventory of the vehicle’s contents and not merely to seek evidence of criminal wrongdoing. In this case, the court first noted that the Santa Bernardino County Sheriff’s Department has a written policy governing inventory searches, and that the deputies, at least to some degree, failed to fully comply with that policy. Thus, while “substantial compliance” with a police department’s policies is often sufficient, the court ruled that in this case, what the deputies did and did not do in this regard showed a primary intent to look for evidence of criminal wrongdoing as opposed to merely safeguarding the contents of the defendant’s vehicle. As noted, the inventorying deputy listed only the presence of two radios and a firearm, ignoring other items. The deputy failed to inventory a speaker, tools, two pairs of sunglasses, a watch, cologne and other miscellaneous items. And while photographs were taken of the interior of the truck, the deputy’s subjective intent in taking those photographs (which also did not show all of the property found in the truck) appears to have been done for the purpose of documenting the truck’s interior for use in a resulting criminal case and not to establish an inventory. In the crime report filed by the deputies, for instance, they listed the firearm and ammunition taken from the defendant’s truck as “evidence,” indicating that these items “were seized and treated specifically as evidence of a crime – not as property (to be held) for safekeeping.”  

The court also rejected the government’s argument that those items not listed were excluded from the inventory because they were of insignificant value in that the department’s “inventory-search policy does not give deputies discretion to decide what property should be listed.”  

In summary, the court held as follows: “The bottom line is simple: the deputies’ recording of a single item used as evidence (the firearm), despite SBCSD’s procedure requiring that they inventory ‘any personal property contained within the vehicle’ was not mere ‘minor’ or ‘slipshod’ noncompliance...It was a material deviation from SBCSD’s standard inventory procedure.” The court further noted that before the truck’s impoundment, the deputies had discovered what they viewed as a “[l]ot of...money” in the defendant’s wallet (around $200), questioned why the defendant had gloves in his truck, why his truck was wet, and determined through a radio check that he was a career criminal.”  

With this information, along with the defendant’s apparent attempt to avoid being stopped in the first place, the deputies already suspected he had been engaged in some sort of criminal behavior, supplying them with the motivation to try to determine what that behavior might have been. The court also found it significant that the search of the defendant’s truck occurred prior to it being towed, as opposed to afterwards as typically occurs with most lawful impoundments. Where the defendant “was secured in the back of a patrol car and there was no immediate exigency related to securing the truck and its contents, is part of the totality informing whether the ‘inventory’ search conducted here was an excuse ‘to rummage for evidence.’”  

Based upon all this, and with the only item listed (the gun) being something intended for use in a criminal case, these facts suggested strongly that the search of the defendant’s truck was conducted to collect evidence of criminal wrongdoing, and not as a lawful inventory search of a vehicle upon impoundment. Therefore, the firearm should have been suppressed as the product of this warrantless search of the defendant’s truck.  

In reaching this decision, the court pulled no punches when it concluded the deputies purposely attempted to sidestep the legal requirements for an inventory search. I’m not so sure, preferring to believe that they just didn’t understand that you must make a better effort to comply with their own department’s procedural rules for inventory searches. And in considering the circumstances, there is really no reason why a lawful inventory search could not have been performed, as the car was lawfully impounded under a community caretaking theory (I presume the court believed the theory applied, although it did not discuss it.)  

It should also be noted that a concurring justice openly accused the deputies of lying about whether they checked with the witness in whose driveway the defendant was parked before or after the search of the defendant’s truck, supporting this accusation with a definitive timeline of the events as they occurred.  

This accusation could have easily been defused had the deputies documented their actions by using their bodycams. (I don’t know why they did not.) The court never mentions bodycams. Noting, however, that your honesty and integrity are your most important attributes as a law enforcement officer, I suggest you not give a court any reason to question them by cutting corners, if that’s in fact what happened in this case.  

If an automobile can lawfully be impounded under the community caretaking doctrine, then follow the correct procedures for doing so. It’s not that difficult. You simply have to be familiar with your agency’s impound procedures and follow them to a “T.” That’s not to say, by the way, that I agree with this case decision. Five justices from this en banc panel, one from the Ninth Circuit’s previous three-justice decision, and a trial court judge, all disagreed, each making some very rational arguments to support their opinions.  

This is a case that really needs to be submitted to the U.S. Supreme Court for a more definitive decision as to where we are to draw the line between a lawful inventory search of a vehicle and the need for probable cause and a warrant (or some other applicable exception to the warrant requirement) before searching a vehicle. As it stands, despite this decision, there’s still is a lot of confusion on this issue that needs clarification.