I had an interesting thing happen in court the other day, and I wanted to talk about it as it may be of interest to others. I was defending a man charged with DUI and possession of drug paraphernalia at a trial. The drug paraphernalia had been found by the first officer on the scene, the one who had stopped my guy for speeding.
During the trial, the officer testified he'd searched my client's car because he was doing what's called an inventory search. There was only one problem: my guy hadn't been arrested yet.
Why does that matter? Well, police are permitted to conduct what we call "inventory searches" of cars without violating the Fourth Amendment prohibition against unreasonable searches if they are taking possession of the car. But that's the thing: they have to be lawfully taking possession of the car in order to be allowed to conduct an inventory search.
The United States Supreme Court clarified all of this in the case of South Dakota v. Opperman, which was ironically handed down on July 6, 1976, two hundred years and two days after the Declaration of Independence was signed by our Founding Fathers. In that case, a car had been impounded by local police in Vermillion, South Dakota for violating local parking ordinances. Essentially, the owner left the car in a no parking zone for too long, and the Vermillion police towed it. By towing the car, the police had taken possession of it, and were then responsible for its contents. The police followed their normal procedures for impounding a vehicle, which included searching the car to make a list of what was inside. On its face, the purpose of this inventory is to make a list of the property inside the vehicle so they can make sure it all of it gets back to the vehicle owner.
The Supreme Court held in Opperman that it was generally ok for police to conduct these inventory searches if they are taking possession of a motor vehicle. First, they said again that we have less of a right to privacy in our vehicles than we do in our homes. Second, they also said it was reasonable to expect police to make a list of what's in a car they have in their possession. Because of those two things, they held that inventory searches are constitutional, so long as the car is actually and properly in the possession of the police. For example, they can't just come tow your car out of your driveway and do an inventory search. They also can't just pull you over and conduct an inventory search before you're arrested, either.