Fourth Circuit allow Virginia cops to violate their own search policies

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From FourthAmendment.com:

Inventory policy giving passengers first opportunity to remove things not binding

Despite the wording of the police inventory policy that police shall give passengers in a car to be towed the opportunity to remove valuables before hand, they are not required to do so. United States v. Battle, 2010 U.S. App. LEXIS 5427 (4th Cir. March 16, 2010) (unpublished): [Another warrantless good faith exception.]

In other words, despite the policy mandate that officers allow passengers to retrieve their personal belongings before conducting the inventory, the cops don't have to.

The cops stopped the vehicle because one of the "brake lights was inoperative."

The car was impounded because the driver "failed to produce a driver’s license, registration, or proof of insurance." Very bad.

Besides the obvious lesson to have valid papers while driving, if you ever get into a situation where the cops are going to tow your vehicle and inventory what's inside, insist on getting your valuables out beforehand. That especially applies to weapons and ammunition. Once again, the court is obsessed with officer safety. See footnote 2:

The specific language of the policy does not require an officer to allow the passengers to retrieve their valuables before the inventory search.

Manifestly, allowing a motorist to retrieve containers before the completion of an inventory search would defeat one of the purposes of the search: the protection of an officer.
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Repeater

The car was impounded because the driver "failed to produce a driver’s license, registration, or proof of insurance."

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I know this is a little off topic, but since when have you been required to produce 'proof of insurance' in Virginia upon a simple traffic stop? I haven't been able to find anything about such a requirement in the law (though you must furnish said proof upon registering the vehicle, or upon request after an accident) and when I have been stopped for traffic violations the officer has never requested 'proof of insurance', just driver's license and registration.

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Probably the best thing is to just assertyourpropertyrights and demand the opportunity to remove valuables. The cops are impounding the car, not your sunglasses, maps, and gun.

If you are really on the ball you can assert an enhanced expectation of privacy in any closed containers. I'm not saying the court will recognize it, but you might get lucky.

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In VA, police do not request insurance information unless you have been in an accident (obviously). When running tags, VA DMV will not even come back with any insurance information like other states do. In VA, you don't even need insurance per say. There is a fee to drive without insurance (VA uninsured motorist fee). Although you are required to carry your license and registration information while you drive, it is not difficult for an officer to just look up the information by using his computer or having a dispatcher look it up. This officer should have determined that the driver was unlicensed in order to tow the car (hopefully that was the case).

Allowing a driver to take valuables before a tow is not only proper, but also makes it easier for the officer. Most policies require you to put valuables into the property section for safekeeping and require paperwork as well. All officers want to avoid paperwork. Yes, request that you take any legally owned firearms with you. Firearms are even more work to place into property since you need to run a wanted check, and secure the item in special boxes (that are never there). Just make sure you talk it over with the officer before opening up your trunk or glove compartment and pulling out your firearm. Also note that during an inventory search, the officer can't open the trunk or locked areas, although I argue the trunk should be allowed if able to gain entry by using the lever inside of the passenger compartment. Many claims of items "missing" from the trunk after a tow truck driver takes the car (just my opinion).

Back on track with this ruling and post: It seems that the officer did not violate the 4th Amendment, but he violated his department policy. Policies differ between departments and the officer could face departmental disciplinary action for violating such rule. Department policies usually restrict what officers can do even restrict things that would be considered legal actions.

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NovaCop10 wrote:

In VA, police do not request insurance information unless you have been in an accident (obviously).

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If I give you the name of the last police officer that gave me a ticket in Portsmouth would you be willing to share that information with him.

I don't think it will really matter though since the judge obviously liked him even less than I did and dismissed all charges against me, (and 8 other people he wrote tickets to).

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NovaCop10 wrote:

Back on track with this ruling and post: It seems that the officer did not violate the 4th Amendment, but he violated his department policy.

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Reading the decision, the officer violated neither 4A or RPD policy. The 4th Circuit parsed the policy quite neatly - the officer "shall allow occupants to retrieve belongings before the car is towed" says nothing about delaying the inventory until the car is hooked up to the tow truck. It also says nothing about allowing the occupants to retrieve property before the actual act of impounding occurs. (See above and read the court ruling for why they want to keep it that way.)

The cop inventoried the contents of the car so that RPD and the occcupants would have a list of what was in the car at the time it was impounded, should a claim against RPD surface later. RPD through the USA says that after impounding and inventorying the contents they "shall" give the occupants an opportunity to take out valuables.

Seems to me that proceeding that way would require a written inventory and a notation of the property removed after being inventoried. But then again I just seem to be caught up in linear thinking.:uhoh:

stay safe.

skidmark

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The court quoted "in good faith", then totally ignored the fact that this was not a good faith effort, it was a way to search everything in the car.

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I think the last three replies from NovaCop10, skidmark, KBCraig were very helpful.

Still, I believe that the police usually tow first, then inventory, so the policy would still protect the interests of persons who wish to retrieve their valuables.

My concern is when persons wish to retrieve their valuables before towing and the police say NO.

That's a problem.

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After rereading the court decision, especially page 9, I noted that the RPD policy is to allow persons to remove valuables after the inventory but prior to the car being physically towed. Repeater - towing first and then inventorying removes the check-and-balance of the owner signing off showing agreement with the inventory. Towing and then inventorying just gives you one side's version. If it were conducted that way I'd be seeing a lot more folks claiming that there was a manila envelope with $5K or $9,999.99 of cash and a note from Grandma saying "Enjoy your birthday" that somehow was not recorded on the inventory. And I've got three buddies and the lady at the 7-11 who all saw the cash & note!

This inventory policy raises a concern and a question. The concern is how to differentiate between the inventorying of the contents of an impounded vehicle and the search of an impounded vehicle for items that might threaten officer safety. The question is how an officer can conduct an inventory without making a physical record (written, audio-recorded, or videotaped) of the items found to be within the impounded vehicle.

My linear-thinking brain says that a looking-around without the making of a physical record is in fact a search and not an inventory, It also says that if a physical record of the items found to be within te impounded vehicle was created, then when the owner of said item(s) claims/retrieves/removes them from the impounded vehicle a notation must be made on the physical inventory. Chain of evidence and all that sort of thing.

Again refering to page 9 of the decision, if an officer makes a "sweep" of the areas accessible to the passengers "for officer safety" then he must be preparing to allow the occupants of the vehicle to return inside the vehicle. As the vehicle in question was impounded (Laron had no license or registration [let's skip the proof of insurance thing] and Battle had no license) there would be no reason to expect the RPD officer to allow either of them to return inside the car to sit there while everyone patiently waited for the towtruck to arrive. Thus there is no issue of a search based on "officer safety" once these passengers are removed from the vehicle.

The more I look at this the more I am surprised at the lack of an actual argument by the Public Defender (yes, I really am surprised) over the difference between an "officer safety" sweep and an inventory. But then I actually do expect folks to be logical and expect words to mean what they say. No wonder I go through life doing this :banghead::cuss::banghead:.

stay safe.

skidmark

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Skidmark,

Sweeping a vehicle for weapons (officer safety) and an inventory search of a vehicle are two separate types of searches. I don't want to get into the differences of searches that involve vehicles, but if you are interested, read up on the Carroll Doctrine, Terry v Ohio, New York v Belton, Arizona v Gant (restrictions), Pennsylvania v Mimms. These are just a few landmark cases that involve searches of vehicles from the top of my head, but there are many more and continuously change.

In this specific incident, I believe the argument was that the officer did not allow the citizen to remove items from the vehicle before the tow which the citizen opposed. In most departments, the officer will inventory the passenger compartment of the vehicle and only record the inventory if they find something valuable (that will be seized for safekeeping until the owner can come pick it up) or something illegal. My department does not require the owner to sign off on any inventory sheets. The officer will usually just ask the occupants if there is something inside of the vehicle that they want to take with them and retrieve the items for them. After the inventory, the car gets towed and that ends the involvement with the police. The owner will deal directly with the tow company to retrieve the vehicle.

In this case, the officer had right for an inventory search and even got a consent search as well. Mr. Battle had no merit to his case, but threw a stab in the dark to attempt to get out of some serious charges. The court did the right thing and upheld the search, and a criminal is held accountable.

Your suggestion about having the driver sign off on an inventory sheet is not a bad idea. I always make sure to ask "is there anything of value in your car, or do you want anything inside of your car before I tow it?". That is my personal way of saying that the owner agreed that there was nothing inside of value if that would come up later. The main purpose for inventory searches in my opinion is for liability for the department and officer. My department also states that if a legal driver is inside of the car and can drive, we should allow them to drive the car instead of towing the car and personal property can be released to the owner prior to tow.

On a side note, inventory searches do turn up some interesting things, and help catch criminals.

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In the world that I live in, an inventory is a formal listing/accounting of the contents of a specified area, signed by at least the person who created the list of items.

In that same world, a visual or physical sweep of the area to find objects of value (be it monetary, sentiment or criminal evidence) is called a search.

How about discussing the "closed container" aspect of vehicle searches? Did Battle have any expectation of privacy once he had ID'd the backpack as his but before the RPD officer opened it? Being as it was on the back seat on "his" side of the vehicle it is a tossup if it was or was not within his dominion & control while he was in the vehicle.

We are not getting a response to a "protective sweep for officer safety" when all the occupants are ordered out of the vehicle and the act of impounding will prevent them from returning to the vehicle being a conundrum if not an oxymoron.

I'm not saying that Battle ought to get off on a technicality, although it really does look like he should. I'm moaning about the ambiguity of 1) how the case was presented and 2) about the totally screwed up RPD poicy statement that cannot be tracked in linear fashion (the "a reasonable man of ordinary intelligence" standard).

stay safe.

skidmark

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Skid,

An inventory of a vehicle is more of a search than just an inventory. Just visually looking around a vehicle would be ineffective at determining if anything of value/illegal (yes, although the main focus of an inventory is for valuable items, lets not be ignorant to the fact that it's also for illegal items) is inside of the vehicle. During a legal inventory search of a vehicle, an officer can look through anything inside of the vehicle to include any unlocked compartments, bags, under the seats, etc.

In this case, the officer found evidence of counterfeit money in the backpack and began to question the suspect. I believe that during his questioning, he determined that the suspect was the one who possessed the money (although they had other evidence corroborating him at the store). Also keep in mind that in VA, there is such a thing as "constructive possession" in which in this case, both males could have been charged. Constructive possession cases are always tricky to prosecute.

The departmental policy may not be the most thorough policy, but it is difficult to make such a policy thorough for the majority of situations (lack of time, dangerousness of where the vehicle is stopped, lack of manpower, etc.).

Just my 2 cents.

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NovaCop10 wrote:

SNIP During a legal inventory search of a vehicle, an officer can look through anything inside of the vehicle to include any unlocked compartments, bags, under the seats, etc.

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Cite, please.

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Citizen wrote:

NovaCop10 wrote:

SNIP During a legal inventory search of a vehicle, an officer can look through anything inside of the vehicle to include any unlocked compartments, bags, under the seats, etc.

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Cite, please.

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Oh my buddy Citizen, I no longer will engage you in discussion because you do not play fair. During our previous discussions, I listed out and cited numerous sources after you requested I do so (and while mocking me). I asked you to do the same in return, but instead, you attacked me personally and threw out your opinion, still with no sources because your views are incorrect. So until you get back to me on how seizing a weapon during a traffic stop is illegal (with your sources of course), your opinion and comments hold no weight.

I can see by most of your previous posts you seem to have a chip on your shoulder for police and the government. Particularly your post indicating that an officer that was shot and killed by a criminal while on duty may have deserved it in some way (everyone else was posting their regards to the officer). You must live in a fantasy world and I cannot engage someone in conversation and debate with views like yours.

So either cite up or don't post. Don't get back to me with your opinion once again and avoid my requests.

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But since I play by the rules, once again.... New York v Belton helps to explain legalized warrantless searches, but most notably, it was South Dakota v Opperman which the court concluded that inventory searches are legal. Sum up the case- Mr. Opperman parked his car illegally on the street. Police towed his car and did an inventory search of the passenger area. They found marijuana and then charged him with it. Determined a legal search.

The court concluded that inventory searches are legal because:
-Protects law enforcement officers from dangers in the vehicle.
-They protect the law enforcement agency from claims of lost or stolen property.
-Protects the person who owns the vehicle from having property stolen.
The court also allows officers to search any containers in the vehicle as well.

Here's a website that will help educate you Mr. Citizen- http://www.patc.com/weeklyarticles/az_v_gant_inventory_searches.shtml

Ps. I did cite case law to skidmark when I posted my comments.

Still waiting for you to cite your sources from our previous discussion..... still waiting.....will it ever come?

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Citizen wrote:

NovaCop10 wrote:

SNIP  During a legal inventory search of a vehicle, an officer can look through anything inside of the vehicle to include any unlocked compartments, bags, under the seats, etc.

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Cite, please.

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I believe the ruling he is looking for is Colorado v. Bertine: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=479&invol=367

Edit: Ah, whoops. You seem to have posted at the same time...Bertine is where the inventory search was expanded to include unlocked containers, I believe.

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NovaCop10 wrote:

Citizen wrote:

NovaCop10 wrote:

SNIP During a legal inventory search of a vehicle, an officer can look through anything inside of the vehicle to include any unlocked compartments, bags, under the seats, etc.

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Cite, please.

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SNIP Oh my buddy Citizen, I no longer will engage you in discussion because you do not play fair. During our previous discussions, I listed out and cited numerous sources after you requested I do so (and while mocking me). I asked you to do the same in return, but instead, you attacked me personally and threw out your opinion, still with no sources because your views are incorrect. So until you get back to me on how seizing a weapon during a traffic stop is illegal (with your sources of course), your opinion and comments hold no weight.

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Nice try at spin, NovaCop10.

Me requesting cites isplaying unfair? You evading cites is playing fair? You providing partial cites, but no links or quotes to text is playing fair?

You requesting a cite from me on how seizing a weapon during a traffic stop is illegalwas nothing more than an evasion on your part. You tried to spin the question and put the onus on me to prove the reverse, when you yourself had not yet to that point provided a cite for your statement of law that it was.

All you have to do is provide cites for your statements of law. You seem to have a real hard time with that. Even here, it was a simple question, what is the case that says a cop can search [your list] during an inventory search, and [your exception]?

You had to go off on a three-paragraph tangent rather than just directly type out the names of the court opinions. You even stooped to attacking me about a chip on my shoulder. Again, rather than just type in the 12-15 characters that represent the name of the case.

I'm not after discussion. I want you to cite your law. As per forum rule #7.

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NovaCop10 wrote:

SNIP I asked you to do the same in return, but instead, you attacked me personally and threw out your opinion, still with no sources because your views are incorrect.

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You mean like when I gave this opinion in that earlier thread:

NovaCop10 wrote:

SNIP I argue that a traffic detention would apply to Terry, especially since you can use a Terry frisk for someone who stop that you even reasonably suspect has committed a crime.

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SNIP He has already overlooked or evaded one request from me for a cite. Had he quoted the relevant text from a court opinion, he wouldn't have made the mind-numbingly dumb (erroneous)remark above.

It is not our job to explain to him how something is or isn't legal. It is his job in the first place to provide a cite to a published source that supports his declaration of a legal point.
_________________

So, you think you can just up and frisk anybody that you reasonably suspect has committed a crime? No separate reasonable suspicion of having a weapon?

I would like your cite, please.

Oh, and nevermind that at that point in the thread you were wandering aroundarguingthat Terry applied to traffic stops when PA vs Mimms was sitting there the whole time, unknown to you at that point in the thread. (Otherwise you would have just cited PA v Mimms and been done with it.)

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Citizen,

I mentioned PA v Mimms in my argument along with other cases (in the previous thread). I also explained Terry and how it relates to a traffic stop (crime is afoot= traffic offense, armed and dangerous= gun in plain view/unknown driver) several times in that thread.

I have given case law to support all my opinions on this site. Not only is it my opinion, but it's combined with training that I have received and with personal experiences I deal with daily. Experiences which I doubt you have ever had to deal with.

There is no actual law in VA or federal law dealing with the legality and reasonableness of searches under the 4A and you know that. Standards relating to the 4th Amendment rely on case law and I have yet to hear you cite and case law to support anything you say. It shouldn't be my job to educate you on case laws.

I have yet to determine your stance on anything besides the fact that you like to take jabs at anyone pro-police. You are always off topic in these types of forums because you go after the poster and not the issues that are in question. Your only rebuttals to any topic is to make the other person "cite" their source.

So do you disagree with me that inventory searches are legal? Why don't you join us in the discussion about inventory searches with your opinion, supported by case law or actual codes? Let's move on with an educated and civil discussion on this topic.

PS. That Terry post was a typo, it should have said Terry "stop".

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GWRedDragon wrote:

Citizen wrote:

NovaCop10 wrote:

SNIP During a legal inventory search of a vehicle, an officer can look through anything inside of the vehicle to include any unlocked compartments, bags, under the seats, etc.

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Cite, please.

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I believe the ruling he is looking for is Colorado v. Bertine: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=479&invol=367

Edit: Ah, whoops. You seem to have posted at the same time...Bertine is where the inventory search was expanded to include unlocked containers, I believe.

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GW,

Thanks for the help, I knew there was a specific case that gave that expanded the search to containers. I don't understand what Citizen is asking for? I just cited several cases and you cited one that explains the reasonableness and legality of an inventory search.

Citizen,
I gave you that website because it makes it clear and summarizes the ruling. Are you knocking me because I didn't Google the case and place a link to a direct copy of New York v Belton? Well here it is: http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=453&invol=454

Now once again, please form an opinion on inventory searches and support it by citing your source. Oh, and please don't cite a YouTube video like you did in a previous thread.