Colorado v. Bertine

PETITIONER:Colorado
RESPONDENT:Bertine
LOCATION:Wisconsin Eastern U.S. District Courthouse

DOCKET NO.: 85-889
DECIDED BY: Rehnquist Court (1986-1987)
LOWER COURT: Colorado Supreme Court

CITATION: 479 US 367 (1987)
ARGUED: Nov 10, 1986
DECIDED: Jan 14, 1987

ADVOCATES:
Cary C. Lacklen – on behalf of Respondent
John M. Haried – on behalf of Petitioner
Richard J. Lazarus – on behalf of the United States as amicus curiae, supporting Petitioner

Facts of the case

Question

Audio Transcription for Oral Argument – November 10, 1986 in Colorado v. Bertine

William H. Rehnquist:

You may proceed now whenever you’re ready, Mr. Haried.

John M. Haried:

Mr. Chief Justice and may it please the Court:

In South Dakota versus Opperman and in Illinois versus Lafayette, this Court held that inventory searches are lawful if they are routinely done, if they are done pursuant to standard police procedures, and if they are done in furtherance of legitimate governmental interests, and if they are not a pretext for an investigative search.

This case is here on a writ of certiorari to the Colorado Supreme Court to decide the narrow question of whether during an otherwise lawful inventory search of an automobile it is permissible for a police officer to open and inventory closed containers.

Sandra Day O’Connor:

Mr. Haried, may I ask you a preliminary question.

Did you urge below or did the state urge below that the search would be valid under Belton, a search incident to arrest?

John M. Haried:

We did not urge that on the interlocutory appeal to the Colorado Supreme Court.

Sandra Day O’Connor:

Why not?

Do you think it would have been?

John M. Haried:

Yes, I do think it would have been, if it had been done at the time of Mr. Bertine’s arrest.

The facts were that it was done some 15 minutes or so after his arrest, after a dog control officer had come and taken the dog out of Mr. Bertine’s vehicle.

Sandra Day O’Connor:

Well, wasn’t there a case from Arizona that dealt with a delay, that recognized the concept of Belton, from this Court?

John M. Haried:

I do not know if there was.

I’m not familiar with it.

Sandra Day O’Connor:

I was just very curious to know why the state didn’t pursue that.

John M. Haried:

It was basically a decision of the facts of this case, that the intent and the whole thrust of the search was an inventory, and that’s the grounds on which we sought to justify it.

The facts in this case are that the defendant was stopped because of his erratic driving, and he was eventually arrested for drunken driving.

He was taken to the Boulder police department for the booking procedure and for a blood alcohol test.

The police impounded his vehicle because where it was left when he was arrested it was blocking traffic on a busy street in the city of Boulder.

The Boulder police department regulations provide for routine inventory searches of impounded automobiles and their contents.

And during the search in this case, the police officer found Mr. Bertine’s backpack on the floor, picked it up and could tell that it contained personal items, and he opened it to look for valuable or dangerous items for inventory purposes.

And inside he found a hair brush, a heavy metal flashlight, clothing, and he also found cocaine, cocaine paraphernalia, Quaaludes, and $700 in cash in one container and $200 in cash in a separate container on a pouch on the outside of the backpack.

The trial court in this case made several factual findings that are particularly important because they help focus the issue on appeal.

The trial court found as a matter of fact that the decision to impound this vehicle was made in good faith, and that it was made for the purposes of protecting Mr. Bertine’s property, protecting the police from false claims of theft, and protecting the police from dangerous items that might have been inside of the backpack.

And the trial court found that the officer followed the standard inventory procedures and, importantly, the trial court found that this search was not a pretext for an investigative search.

Sandra Day O’Connor:

Were there procedures in place for when containers would be opened or whether they would or anything of that sort?

John M. Haried:

The Boulder police department regulations provide that if a vehicle is impounded it shall be inventoried, and the trial court made a finding that that meant opening closed containers.

Sandra Day O’Connor:

Is there anything in the record that tells us what the policy is, other than that general conclusion?

Was that conclusion of the trial court supported by a written policy of any kind?

John M. Haried:

There is a written policy.

John M. Haried:

It is found in the joint appendix at page 88, and it speaks… the language of it says that the vehicle and its contents shall be inventoried.

There was testimony, which is in the record, that the usual practice of the Boulder police department was to open closed containers in that situation.

Sandra Day O’Connor:

Was there any testimony by the officers in question here to the effect that they had a slightly different policy about whether to open containers or not?

It just wasn’t all that clear to me that there was a clearcut policy on this.

John M. Haried:

I think that the Boulder police department regulations don’t spell out in detail the word “inventory”.

I think if you read them as a whole, as the trial court did, you reach the conclusion, which was the factual finding of the trial court, that inventory means opening closed containers.

John Paul Stevens:

Mr. Haried, what is the policy with regard to locked containers?

John M. Haried:

It’s the same policy.

John Paul Stevens:

You break the lock in all cases and open the briefcase or whatever it might be?

John M. Haried:

That’s correct.

John Paul Stevens:

Does the record show that?

John M. Haried:

I don’t believe that it does.

It wasn’t an issue in this case.

The trial court considered the search here under the Fourth Amendment and found that it was a lawful search under this Court’s ruling in Illinois versus Lafayette.

But nonetheless, it suppressed the search on the basis of the Colorado constitution.

On an interlocutory appeal to the Colorado Supreme Court, that court affirmed the trial court’s suppression of the evidence, but did not base its decision on the Colorado constitution.

Instead, it based it solely and squarely on the Fourth Amendment.

The Colorado Supreme Court specifically said that it did not reach or decide the state constitutional issue.

In Illinois versus Lafayette, this Court held that in the course of an otherwise lawful… that during an otherwise lawful inventory search at the booking desk, it was permissible for police officers to open and inventory closed containers.

And our position is that the same reasons that supported the inventory of closed containers at the booking desk in Lafayette apply with equal force here.

In both contexts, both at the booking desk and on the street when a vehicle is impounded, the same basic thing is happening.

The police in the exercise of their caretaking function are taking physical custody of a citizen’s property.

And as a result, they are charged with responsibility for that property, responsibility to safeguard it, to keep it from being stolen or destroyed, and the responsibility to protect against the risk of harm from dangerous things that may be inside the property.

John Paul Stevens:

How would that justification apply to a locked briefcase?

John M. Haried:

I’m going to start from the premise that locked briefcases… not all locked briefcases are totally secure.

In other words, many types of locks and briefcases can be picked or combinations can be opened, so that no container is secure.

And there is–

John Paul Stevens:

Yes, but if the police officer noted on it it was a locked briefcase, presumably if it was picked later, why, there wouldn’t be any… I don’t understand.

John M. Haried:

–Well, he’d have no way of showing that it was picked later.

But more importantly, there is–

John Paul Stevens:

But at the time he made the inventory, he inventoried it as a locked briefcase.

So if it was picked it would have to be picked later.

John M. Haried:

–But he could still be unjustly accused of being the person who picked it, and he’d have no way of protecting against that.

But there’s still in that situation the important governmental interest in not bringing into the… police station containers that may hold valuable… I’m sorry… that may hold particularly dangerous items, and have to store them there, because then the police would have no way of knowing what it is they’re storing.

If we get into an analysis that draws… tries to draw a line between locked and unlocked containers, we really are getting into a worthy versus unworthy container analysis.

And I think that it’s important in this type of search to have a bright line that the police officers can follow in each case, so that they don’t have to make that kind of a judgment and they’re not subject to later accusation or being second guessed about that.

Antonin Scalia:

What happens to all these materials after they’re inventoried, assuming that it’s a case like this where there’s a truck that’s going to be towed somewhere?

John M. Haried:

The truck–

Antonin Scalia:

Do they bring everything that’s inventoried to the station, only the valuable things to the station?

John M. Haried:

–Only the valuable things or particularly dangerous things.

For example, an old shirt that’s lying of the floor they don’t bring that in.

A backpack that they weren’t able to open and know whether it contained something valuable or dangerous, they would then as a practical matter and probably so that they aren’t negligent have to take that in.

The Respondent has argued, as the Colorado Supreme Court did, that in the booking inventory context there’s a greater governmental interest in opening closed containers simply because of the need to prevent weapons or contraband from getting into the jail population.

And the Respondent seems to say that the only way that the police can prevent that from happening is to open closed containers.

His argument ignores the fact that the governmental interest in the security of the jail could be adequately served simply by taking the container away from the arrested person, sealing it in some fashion, and storing it in a safe place outside of the jail population.

William H. Rehnquist:

We’ll resume there at 1:00 o’clock, Mr. Haried.

We’ll continue, Mr. Haried, where you left off.

John M. Haried:

Thank you.

Before lunch I was saying that the defendant’s argument about the security of the jailhouse could… I was saying that that interest in a secure jailhouse could adequately be served simply by taking closed containers from an arrested person and sealing them and putting them in a safe place outside of the jail.

However, in Illinois versus Lafayette this Court refused to impose such a less intrusive means requirement on jail personnel.

And there is no reason to impose such a requirement in this case.

It’s significant to note also, as was raised in Justice Scalia’s question, the fact that when containers are found in impounded and inventoried automobiles that that if they’re going to be kept for safekeeping they have to be taken to the police department, and as a result there is a situation that is substantially the same as that in Illinois versus Lafayette.

In both the booking inventory context and the automobile inventory context, closed containers are coming into the jail.

And in both situations, it’s just as important, it’s imperative that the police know what it is that they are taking custody of so that they can take proper measures to safely store it.

The Respondent has also argued that closed container inventory searches during inventories of automobiles will lead to a parade of horrible results.

This is not true because there is already criteria in the case law that would limit the application of the inventory exception to particular facts and situations.

And lower courts have been in the past and will continue to be fully able to apply those criteria to separate the lawful inventory search from the unlawful pretext search.

Thurgood Marshall:

Where was the car put, the van put, afterwards?

Where was it stored?

John M. Haried:

It was taken to a private storage and impound lot.

Thurgood Marshall:

Owned by the government?

John M. Haried:

No.

Thurgood Marshall:

Does the government have a lot?

John M. Haried:

No.

Thurgood Marshall:

Well, where do they keep their police cars?

John M. Haried:

They keep them under the building that houses the police department.

It’s a small parking area.

Thurgood Marshall:

Well, couldn’t they have put it down there?

John M. Haried:

Physically, they could have done it.

As a practical matter, there’s not nearly enough space to handle all the impounded automobiles that are taken in.

Thurgood Marshall:

Well, could they have locked it?

John M. Haried:

They could have locked it, yes.

Thurgood Marshall:

Couldn’t they have secured the pack?

John M. Haried:

They could have secured the pack.

They would have had to have made a decision about whether to leave it in the car or not or to move it into the police station.

Thurgood Marshall:

Well, why did they open it?

John M. Haried:

They opened it because the police officer didn’t know if there was anything particularly valuable that needed safekeeping or anything particularly dangerous that also needed safekeeping, because from the outside of the pack there was no way of knowing.

Thurgood Marshall:

Well, what was worrying them about something dangerous?

John M. Haried:

What do I mean?

Thurgood Marshall:

Yes.

How would that hurt them?

John M. Haried:

Well, for example, if there were a loaded gun inside the pack–

Thurgood Marshall:

Well, the man couldn’t get to it, could he?

John M. Haried:

–No, he could not.

Thurgood Marshall:

What danger would it be?

John M. Haried:

The danger would have been, if by some accidental means, for example, a loaded gun were triggered to go off as the police officer is handling it or throwing it into his police car or giving it to the property custodian or something like that.

Thurgood Marshall:

This was the pack I’m talking about.

John M. Haried:

That’s correct, it was a backpack.

Thurgood Marshall:

You could have put it in a garment bag and that would have been it, wouldn’t it?

John M. Haried:

It would have been it in terms of holding it for safekeeping.

John M. Haried:

But the other government interest–

Thurgood Marshall:

I don’t see why you had to open it up.

John M. Haried:

–That’s correct.

Thurgood Marshall:

I don’t understand why you had to open it up.

John M. Haried:

The reason is because–

Thurgood Marshall:

Couldn’t you just inventory it, one pack?

John M. Haried:

–That is… it could be done that way, but it would not serve the governmental interest because the police would have no way of establishing what it is they had initially taken custody of, and they would have no way of knowing how to store that item or how to handle it.

Thurgood Marshall:

How do we know that the search was for the purpose of inventory or the purpose of obtaining evidence?

John M. Haried:

How do we know that it was not for those purposes?

Thurgood Marshall:

How do I know the difference?

John M. Haried:

Well, the trial court in this case made a factual finding that the search was not a pretext for an investigative search, that it was done in furtherance of the governmental caretaking interest.

Thurgood Marshall:

It was a finding.

Put it’s not a fact, it’s a finding of law.

John M. Haried:

I agree, it involves a finding of law.

Antonin Scalia:

Mr. Haried, as I understand it the officer would have left the backpack in the truck if it didn’t contain any valuables, right?

John M. Haried:

That’s right.

Antonin Scalia:

But he wouldn’t want to leave it in the truck if it contained a loaded pistol, would he?

John M. Haried:

That’s correct.

Antonin Scalia:

Because somebody might come along and get it and obtain a loaded pistol, someone who shouldn’t have a loaded pistol.

John M. Haried:

Absolutely.

Antonin Scalia:

So that’s the reason he had to look at it, to decide whether to take it to the station or not?

John M. Haried:

That’s correct.

Thurgood Marshall:

Was it in a place where anybody could get in it?

John M. Haried:

It was… the car was moved to an impound lot, which in this case–

Thurgood Marshall:

Was it secure?

John M. Haried:

–It was secure to the extent that a fence makes any area secure, but it’s not totally immune from trespassers or vandals.

Thurgood Marshall:

Is the police department safe from trespassers and vandals?

No, no place is safe from it.

John M. Haried:

I would say that the property room where things are kept is about as safe a place as you can get.

Thurgood Marshall:

Well, couldn’t you have put the pack in the property room?

John M. Haried:

You could, and this pack was eventually put there after it was inventoried.

Thurgood Marshall:

It was put in after in was searched.

John M. Haried:

That is correct.

Thurgood Marshall:

Did you need to search it to put it in the property room?

John M. Haried:

We did not need to search it to put it into the property room, no.

But you did need to search it in order to know whether it was the kind of thing that needed to be put into the property room.

If the Court doesn’t have any other questions, I’d like to reserve the balance of my time.

William H. Rehnquist:

Very well, Mr. Haried.

We’ll hear now from you, Mr. Lazarus.

Richard J. Lazarus:

Mr. Chief Justice, may it please the Court:

It is our position that this case is controlled by this Court’s decisions in Lafayette and Opperman.

Respondent’s claim that the search of his backpack violates the Fourth Amendment rests at bottom on the proposition that a routine inventory search cannot validly extend to the contents of containers located inside a lawfully impounded motor vehicle.

According to Respondent, the score of such an inventory search is per se unreasonable even if performed pursuant to standard police department procedures, as the district court found was the case here, and not a mere pretext for an investigatory motive, as the district court found was not the case here.

We believe that Respondent’s proposed limitation on the scope of valid, routine, inventory searches is not supported by the Fourth Amendment.

Indeed, we believe that Respondent’s view has in principle, if not in fact, already been squarely rejected by this court in Lafayette and in Opperman.

No doubt for this reason, since this Court’s decision in Lafayette the Colorado Supreme Court stands virtually alone in upholding the limitation on routine inventory searches urged by Respondent here.

Most importantly, as Petitioner has already emphasized, justifications for the administrative practice of inventory searches apply with full force to the inventorying of containers taken into police custody, including those located in motor vehicles.

Such searches may on a categorical basis be needed; first, to protect the owner’s property; second, to protect the police from false claims of theft; and third and finally, to protect the police and their employees from the dangers associated with taking into custody containers the contents of which are unknown… virtual Trojan horses.

In Opperman, this Court recognized that these needs–

John Paul Stevens:

Mr. Lazarus, do you think the rationales apply equally to locked containers?

Richard J. Lazarus:

–Yes, we do, Your Honor.

As a matter of fact, it is the policy of both the DEA, the Drug Enforcement Agency, and the FBI in their inventory procedures to include locked containers.

The basic reason is the distinction–

John Paul Stevens:

Unlock them, break into them?

Richard J. Lazarus:

–To break in, doing minimum damage.

The basic reason for that is, although one could draw a line there, it’s not unreasonable not to.

John Paul Stevens:

Well, supposing they had the equipment they have at airports, where they just run it through to see if there’s a gun in there or anything like that.

Would there be any need to go beyond that?

Richard J. Lazarus:

Well, we think it would be a mistake to require that kind of case by case inquiry.

I mean, they could use a different method, but the question here, as in Lafayette, is whether the Constitution requires them to use a specific less intrusive means.

John Paul Stevens:

I understand.

So the reason is just one of administrative convenience when it comes to locked containers, when they could find out otherwise?

Richard J. Lazarus:

Right, administrative convenience and the advantage of having routine procedures–

John Paul Stevens:

Right.

Richard J. Lazarus:

–opposed to trying–

John Paul Stevens:

Break into everything is the routine.

Richard J. Lazarus:

–Right, but the basic point is that the category of locked containers itself would involve such a wide variety of containers, many of which, like suitcases and briefcases, are so easily susceptible to being opened that it’s reasonable for the police to have a procedure which takes away that discretion to try to decide which ones are easily openable and which ones are not and just say all locked containers should be open.

John Paul Stevens:

It’s to avoid the problem of deciding whether a container is locked or not, in other words?

Richard J. Lazarus:

Well, whether it really is susceptible to being opened.

Byron R. White:

Well, you also want to know what’s in the suitcase, don’t you?

Is there any other way of really knowing without looking?

Richard J. Lazarus:

No, and if you don’t open it up you cannot be sure in terms of–

Byron R. White:

You might be able to use a scanner that would tell you the shape of something or whether it’s metal or not, but–

Richard J. Lazarus:

–That’s right, Your Honor.

Byron R. White:

–you wouldn’t know what’s in some bag.

Richard J. Lazarus:

That’s right.

And it would be… the continuing needs of the inventory searches apply even when the container is locked.

William H. Rehnquist:

Now, here I understood there were packages of $700 and $200 found.

So that quite apart from whether a metal detector would have detected that, there is a need to inventory in order to safeguard it.

Richard J. Lazarus:

The facts of this case illustrate that quite well, how a container that was giving no outward indication that it might contain a valuable in fact did.

In Opperman this Court recognized that the legitimate needs of the inventory search justified the routine inventory search of a motor vehicle in police custody.

In Lafayette, this Court recognized that these same needs justified the routine inventory search of a backpack taken into police custody at the station house.

We see no reason to suppose that these same needs don’t justify an inventory search of basically the equivalent of the Lafayette shoulder bag in the Opperman vehicle.

The legitimate and fully reasonable need for the police to learn what is in the contents of a container taken into custody does not magically end once a container is found within a motor vehicle, nor begin only when the container is itself physically located at the station house.

The facts of this case we believe illustrate both principles.

In this case the police were in lawful custody of Respondent’s motor vehicle and its contents in the field, and had to determine there what to do with its contents.

They faced a purely administrative function.

It was plainly reasonable, we believe, for the police in deciding what property in the car to take for safekeeping in the property room in the station house to inventory the contents of containers they found, as long as the search was performed, as it was here, in a manner that was reasonably confined and subject in scope to those limited ends.

The contrary view, which is what Respondents propose here, we believe, would inevitably lead to undesirable judicial management of routine administrative procedures and, even more fundamentally, it would likely lead to procedural rules that would be incompatible with efficient and prompt police administration of their caretaking, non-investigative function.

For example, Respondents propose that the validity of a routine inventory search should turn on a case by case inquiry into the availability of less intrusive means.

Richard J. Lazarus:

Such a requirement would be fundamentally incompatible with the notion of a routine administrative procedure.

Inquiry into the needs of the police in a particular case, such as that undertaken by the Colorado Supreme Court here, into the subject of suspicions about the contents of specific containers, the availability of certain towing companies, the relative records of various towing companies, the privacy expectations that owners might have with respect to an infinite variety of containers, would inevitably convert a routine administrative procedure into an ad hoc process.

Both the purposes of the inventory search and, ironically, the rationale of this Court’s acceptance of such searches would both be defeated.

Respondent also proposes that consent should be a prerequisite to a valid inventory search.

Of course, requiring consent would be tantamount to saving that inventory searches are not entitled to any special Fourth Amendment analysis, because consent is already an exception to the Fourth Amendment probably cause and warrant requirements.

In any event, as this Court has recognized already in Opperman, consent does not recognize or address the legitimate needs of the police to protect themselves.

No doubt for these reasons, both in Opperman and in Lafayette this Court has already squarely rejected the constitutional requirement of consent.

In our view, the sole inquiry in each case should be threefold:

First, whether the property is lawfully in police custody for non-investigative reasons;–

Second, whether there exist routine inventory procedures that are reasonable in scope and subject;–

And finally, whether the police have followed these routine procedures in the case at hand.

In this case, all three inquiries support the reasonableness of the search and were supported by findings of the district court.

Accordingly, we believe that the decision of the Colorado Supreme Court should be reversed.

If there are no further questions.

William H. Rehnquist:

Thank you, Mr. Lazarus.

We’ll hear now from you, Mr. Lacklen.

Cary C. Lacklen:

Mr. Chief Justice and may it please the Court:

I think it’s important for the Court to understand the facts of this case before it rules on the law that it will apply.

When Mr. Bertine was arrested for driving under the influence, he was handcuffed and placed into the police car and removed from the scene.

A backup officer, a trained narcotics officer, had been called to the scene by the arresting officer.

Officer Reichenbach, who was put in control of Mr. Bertine’s car, waited for a dog impound officer to remove Mr. Bertine’s animal from the car and, long after Mr. Bertine had left the scene, he started what he called an inventory search.

He testified at the hearing that that inventory consisted of him going into the truck to see if anything of interest was there.

He checked the glove compartment, as in Opperman, and then he immediately went to the backpack that he found behind the front seat.

He had no inventory sheet with him.

He didn’t begin an inventory of that backpack, and the trial court found that the inventory of the backpack was done some time later, after the search of the backpack.

He removed the backpack from the truck, took it back to his patrol vehicle, and opened the backpack.

But that wasn’t the end of his search.

He opened a nylon opaque pouch inside the backpack, and inside that found four containers.

Those containers were metal, opaque, lock-sealed tin cannisters, four by one by three inches.

He opened each of these locked containers, clip-locked containers, individually and found the contraband in question.

Antonin Scalia:

Well, what use is there in opening the backpack if all he can do when he opens the backpack is to note, there’s a nylon bag in the backpack?

That’s not very informative, is it?

I mean, if there is some purpose in examining the backpack it’s to find out what’s in there.

Simply to know that there’s a nylon bag in there is not very helpful, right?

So he opens the nylon bag and he sees tin cannisters, giving no indication of what’s in them.

It’s not very helpful to know that there are tin cannisters, any more than it is to know that there’s a backpack.

Cary C. Lacklen:

The Colorado Supreme Court found that the scope of the intrusion in this case was more than what was required by the governmental interest of protecting Mr. Bertine’s property or protecting their claims against–

Antonin Scalia:

I understand, but I’m asking why that’s so?

Why is it beyond the scope?

Apparently the scope would consist of only looking in the backpack and seeing that it contains another pack.

What possible interest of the state does that protect, to know that there’s a bag within a bag?

I mean, ultimately the state wants to know what is in the backpack.

You don’t know what’s in it simply to know that there’s another container.

Cary C. Lacklen:

–Clearly, from the prosecution’s point of view the police have to know what’s in every small container.

–Our argument is that that has to be balanced against the defendant’s legitimate Fourth Amendment privacy interests in those containers.

Antonin Scalia:

I’m saying from anybody’s point of view.

Never mind just the prosecutor’s point of view.

It seems to me if there is any sense in the exception that we’ve made for an inventory search, it’s rationale is that the police are entitled to know what’s there.

Now, you could say that they aren’t.

If you want us to strike down the inventory rule entirely, that may be sensible.

But if you have an inventory rule, surely it doesn’t make any sense unless you can find out what is there, and “what” does not consist of a nylon bag or of a tin can.

You want to know what is in it.

Cary C. Lacklen:

Well, I would argue that the scope of the inventory search has to be reasonable in and of itself.

In this case, the officer testified–

Antonin Scalia:

Well, what’s your principle?

The first container you come to you stop at?

You stop at the backpack?

Cary C. Lacklen:

–Clearly, the backpack could have been intruded upon to see if there were any weapons or dangerous instrumentalities.

Antonin Scalia:

But you can’t tell if all you see in it is a nylon bag.

Cary C. Lacklen:

I understand.

Cary C. Lacklen:

And the officer went beyond the nylon bag to small tin cannisters in this case that he said he didn’t suspect contained dangerous instrumentalities and didn’t suspect contained anything particularly valuable.

He said he went into the cannisters because he was curious.

And I think the Fourth Amendment clearly protects against the curiosity of an investigating officer.

Antonin Scalia:

It did contain valuables, though, didn’t it?

$700 or so one of them contained?

Cary C. Lacklen:

It did contain money and contraband, and if you take the prosecution’s argument to its logical extension there is no container of whatever size in an inventory that the police cannot search.

Antonin Scalia:

Like a cigarette pack?

Cary C. Lacklen:

That’s correct.

Antonin Scalia:

But we’ve upheld that in one of our cases, at a station house to be sure.

But the principle as to the size of the container, surely we’ve overcome that obstacle already.

Cary C. Lacklen:

Clearly, the exigencies of the search of the cigarette pack in Lafayette were greater than in this case.

We’re arguing that the Court has to balance the privacy interests that have been upheld in Chadwick and Arkansas versus Sanders against the governmental interest to learn what’s inside these containers.

William H. Rehnquist:

The balance should be struck at a point where the government may have opened one container, but learned absolutely nothing?

When they opened the backpack, as Justice Scalia says, it seems to me they’re no further ahead than before they opened the backpack.

Cary C. Lacklen:

Well, I think that a reasonableness test on the nature of the container is what this Court should judge the intrusion against.

William H. Rehnquist:

So it’s reasonable to open the backpack, but not reasonable to open the nylon bag?

Cary C. Lacklen:

I would submit yes, because–

William H. Rehnquist:

Well, why?

Cary C. Lacklen:

–Because the nylon bag could not have contained… or the cannisters that were actually the last layer of container opened could not have contained anything dangerous.

William H. Rehnquist:

Well, but it isn’t just dangerousness.

Part of the rationale for the inventory search is valuable.

Cary C. Lacklen:

I understand, and we feel that there are less intrusive alternatives of storage.

William H. Rehnquist:

Well, but since when have we applied the less intrusive alternative to this particular kind of search?

Cary C. Lacklen:

Clearly there’s language in Lafayette that says that the Court in the abstract is not going to be governed by a less intrusive alternative.

But I think an analysis of the cases, of the less intrusive cases cited in Opperman and in Lafayette, make it clear that that’s one of the factors the Court should consider.

And clearly the state court in this case considered that there were less intrusive alternatives.

William H. Rehnquist:

Yes, but that’s a correct inquiry only if the authorities support it.

Cary C. Lacklen:

I would agree, and on the facts of this case the Colorado Supreme Court found that there were less intrusive alternatives balanced against this governmental interest to find out what was in the cannister.

William H. Rehnquist:

Well, does that mean that every single inventory search then has this kind of ad hoc analysis?

I mean, that was part of the reason, I thought, for the Opperman decision and part for the Lafayette decision, was to get away from this case by case inquiry and set up some… have bright line rules that the police could follow.

Cary C. Lacklen:

We would agree, and I think our argument is that the bright line rule here should be that closed containers should not be inventoried in a situation where the police have no reason to believe or no reasonable suspicion to believe that the container contains anything dangerous.

The mere possibility of something dangerous or something valuable being inside a container shouldn’t vitiate the Fourth Amendment interest in the sealed container.

Byron R. White:

Well, what do you do with these tin cans or these containers?

Do you just leave them in the car?

Cary C. Lacklen:

The Colorado… yes.

The regulations–

Byron R. White:

So you just ignore the fact that they might contain valuables?

Cary C. Lacklen:

–Well, clearly in an Opperman situation, where the storage lot where the car or truck was being taken, that would be unreasonable for the police to have to do that.

But in this case, the storage lot was surrounded by six foot fence–

Byron R. White:

So your answer to my question is yes, leave them there?

Cary C. Lacklen:

–Well, there’s an alternative.

You can leave them in the truck and take them to a secure facility.

If the facts of the particular case indicated that the facility was not secure, such as in Opperman, then the police could remove the backpack as a unit and take it to the police station and store it in their property room until Mr. Bertine or the arrestee is released.

Byron R. White:

What do you think the rule is in the police station when you arrest somebody?

Cary C. Lacklen:

Clearly, in the Lafayette situation, where the person is being booked into the jail, you can search anything that’s on his person.

Byron R. White:

Why?

Cary C. Lacklen:

We would submit that the–

Byron R. White:

Suppose you open a backpack in the police station after arrest and you see these very containers.

Now, under Lafayette you can search them.

Cary C. Lacklen:

–Clearly you can.

Byron R. White:

Why?

Cary C. Lacklen:

Clearly, the exigencies in the–

Byron R. White:

Exigency about what?

Cary C. Lacklen:

–Of danger in the jail–

Byron R. White:

Well, I don’t accept your statement that there’s no reasonable suspicion or no reasonable possibility that these containers contained anything dangerous.

So why can you get into them?

Cary C. Lacklen:

–Well, clearly in Lafayette, which we think is a correct decision, in the jail setting the exigencies of the possibility–

Byron R. White:

What exigency?

Cary C. Lacklen:

–The possibility of a prisoner getting a hold of a dangerous instrumentality that’s in a container.

Byron R. White:

Well, I know.

Byron R. White:

But let’s just posit that there’s no real possibility of having anything dangerous in this tin can or this tin container.

Cary C. Lacklen:

Well–

Byron R. White:

Then what?

Is there an interest in knowing what’s in it so you can take care of it properly or not?

Cary C. Lacklen:

–We would submit that the interest in taking care of property doesn’t outweigh the Fourth Amendment interest in–

Byron R. White:

I think you really are suggesting that Lafayette ought to be kind of chewed up.

Cary C. Lacklen:

–No, we’re in total agreement with Lafayette, because it’s in a jail setting.

The prosecution argues that–

Byron R. White:

Well, I know, but you take this briefcase into the… or you take this backpack or the cannisters into the police station.

There you are in the police station.

Cary C. Lacklen:

–Clearly the–

Byron R. White:

Along with him.

Cary C. Lacklen:

–Clearly, if Mr. Bertine had taken his backpack with him when he was arrested by Officer Toporek, it would be covered by Lafayette.

But those aren’t the facts of this case.

Mr. Bertine was removed, separated from his backpack.

The backpack became as the luggage in Chadwick and Sanders.

Byron R. White:

It seems to me it cuts just the other way.

I would think that there’s less reason to worry about what’s in the backpack when it’s deposited in the station and is going to be put in a secure safe in the station than there is to worry about what’s in the backpack if you’re going to leave it cut on the public streets or in some lot that is easily accessible to thieves.

If there is a loaded gun it it, when it’s locked up in the station there won’t be any trouble.

But if you leave it out in some parking lot, it’ll get in the hands of the criminal.

I think it cuts just the opposite way.

I see less reason to worry about it in the police station situation.

Cary C. Lacklen:

Well, we would submit that in this case the Colorado Supreme Court found that the storage lot was fenced, lighted, patrolled, and there had never been a theft from any of the vehicles stored in this particular–

Antonin Scalia:

But it’s not inside a police station, either.

Cary C. Lacklen:

–No.

Clearly if the car had been towed to the basement of the police station it would be more secure.

Antonin Scalia:

So it’s clearly less secure than the place where the cigarette pack is going to go in Lafayette.

Cary C. Lacklen:

I think the problem in Lafayette, the way would analyze that case, is that the purse was in the police station and the police had an obligation to deal with it.

Part of our argument here is that there is no need for an inventory if… unless the defendant consents to it.

If the defendant says, I’ll waive the inventory and waive whatever liability there may be, then the governmental interest in finding out what’s in that container is minimal.

Antonin Scalia:

They were arresting this person because he was intoxicated, correct?

Cary C. Lacklen:

That’s correct, he was arrested for driving while–

Antonin Scalia:

And you want to ask him in his intoxicated state whether he minds whether they leave his valuables on the street?

Cary C. Lacklen:

–Clearly–

Antonin Scalia:

And you’re going to hold him to whatever he says?

Cary C. Lacklen:

–Clearly, the waiver of the liability, if he would be doing that, could be done even in an intoxicated state.

There may be situations where the defendant is comatose or not available, as in Opperman, and clearly the police have an obligation at that point to perform their caretaking function and secure the property.

In this case, because of the secure nature of the storage facility, the police clearly would have been acting reasonably to store the car with the backpack in the storage facility.

It’s clear that the interests in this case are different than the interests in Opperman and in Lafayette.

The balancing of those interests must be weighed in the context of what this case represents, a field inventory.

In this case, as was not present in Opperman, the defendant was present to make other arrangements for his truck and for the contents of the backpack.

Then the Court is drawing up a doctrine in this case, I think it’s important, as Professor LaFave has pointed out, to be cognizant of the pretext danger of developing a doctrine where the police can avoid a Chadwick or Sanders or even a Belton and Ross analysis by delaying the search until the car or the backpack is in the hands of the impound officer.

This invites the police to delay their searches to bring it under the rubric of the inventory, and I think the Court has to be cognizant of the threat of abuse in this type of setting.

Antonin Scalia:

That’s a good reason for not adopting an inventory rule.

I mean, you might say that as a prophylactic measure, since it’s subject to abuse, we don’t have any.

But we have one, and what I don’t understand is what is the intelligent line that you want us to draw in the inventory rule that will exclude the abuse, but allow the permissible activity.

Take a glove compartment in a car.

You would allow them to open the glove compartment?

Cary C. Lacklen:

Yes.

Antonin Scalia:

Why is there any reason to believe that there are valuables in the glove compartment?

People don’t usually leave valuables in their glove compartment, or they’re very foolish if they do.

Cary C. Lacklen:

We would submit that the glove compartment is part of an integral part of the vehicle and can’t be separated from the vehicle itself.

The glove compartment goes with the car to the storage unit.

The backpack can be removed and taken to the station.

Antonin Scalia:

So anything that can be taken and removed to the station must be taken to the station?

That’s the line you draw?

If it’s integral to the car, you have to leave it with the car, but if you can remove it to the station it has to be taken to the station?

You’d have pretty crowded stations around the country if every loose piece of equipment that you can’t examine in all these cars are going to be stored there.

That can’t be the rule, can it?

Cary C. Lacklen:

Well, I think that the police have an option, depending on what is reasonable under the circumstances.

Cary C. Lacklen:

And in this case, the Colorado Supreme Court found that it was reasonable to leave the backpack in the car and take it to a secure storage facility.

Antonin Scalia:

I’m still not sure.

That’s not your line, then?

The line is not that you have to take to the station whatever is removable?

What is your line?

You have to have… if it’s removable, it has to look as though it contains something valuable, is that it?

Cary C. Lacklen:

Our argument is that if it looks like it contains something valuable, it should be removed and stored at the police station.

Antonin Scalia:

Okay.

Only that?

Even though most people who leave things valuable in the car certainly wouldn’t put it in a container that looks as though it’s valuable?

You wouldn’t leave something in a car in a gold box, would you?

You’d put it in a tin can, just as this person did.

That doesn’t strike me as a very sensible rule.

Cary C. Lacklen:

Clearly, the police can protect the defendant’s Fourth Amendment privacy interests and protect their own interests against false claims or property by either storing the backpack or the container at the police station for the short period of time that someone arrested for a minor traffic offense, such as in this case, would be in custody.

The argument that the prosecution makes has no limits.

Locked containers, locked suitcases, double locked footlockers in Chadwick and Sanders, would not be taken away from the scene without being searched.

In order for the Court to adopt the prosecution’s rationale, we wipe away the doctrine that’s been carefully constructed under Lafayette, under Chadwick, Belton, Ross, Sanders.

This search may very well have been permissible under a Belton analysis.

The arresting officer said he wasn’t searching incident to an arrest.

The trial court found he wasn’t searching incident to an arrest.

And the prosecution has abandoned that argument both in the Colorado court and in its briefs in this court.

The limitless–

John Paul Stevens:

May I just… what do you think is really at stake in this case?

If Belton would have justified the search anyway, how many cases are there going to be like this?

Does it really just apply to abandoned vehicles, do you suppose?

Cary C. Lacklen:

–Well, there are many, many different types of circumstances where the police come into contact with someone’s personal property.

John Paul Stevens:

Yes, but are there many cases where they take a vehicle in without arresting its driver?

Cary C. Lacklen:

I think there’s a footnote in 100,000 cars were towed for parking Opperman violations, traffic violations, in New York City in one year.

I think it’s clear overtime parking–

John Paul Stevens:

Really, we’re talking about abandoned vehicles as the category of cases we’re concerned with, I guess?

Cary C. Lacklen:

–Well, the facts of this case clearly are limited to someone being arrested for a minor traffic offense.

But inventories clearly apply across the board to all sorts of situations, and that’s the problem.

The problem is is that people who do no more than park overtime on Constitution Avenue after 4:00 o’clock, Joe and Mary Tourist, are going to have their car towed and their personal luggage examined under this rationale of the police, that we have look into locked suitcases and every container to find out what is there.

Antonin Scalia:

The question is whether Joe and Mary Tourist would prefer to have their valuables taken out rather than left somewhere.

I expect they would.

Cary C. Lacklen:

Well, clearly that’s something that should be left to the individual’s discretion and his consent.

John Paul Stevens:

How do you leave it to the individual’s discretion if the individual isn’t around the vehicle at the time they tow the vehicle in?

How do you find out the answer?

Cary C. Lacklen:

Well, clearly that rule doesn’t apply in the facts of this case, and I think Opperman was a–

John Paul Stevens:

You see, the thing that puzzles me is the facts of this case, everybody seems to agree, would have been covered by Belton anyway.

And I don’t know how we’re going to get many cases like this involving arrests where you’ve got a fight.

The only case it seems to me that may be relevant is the overtime parker, and I don’t know how you find out whether you get a consent or not in that case.

I guess you search everything.

Cary C. Lacklen:

–Clearly, the overtime parker or the comatose accident victim is an exception to our prerequisite–

John Paul Stevens:

I guess the rule is that people who are concerned about their briefcases in the car better carry plenty of change.

Cary C. Lacklen:

–Well, not overpark.

I think it’s important for the Court to understand the procedural context that this case came up to this Court.

The trial court found that the search was unlawful under state constitutional grounds.

That was the only issue appealable in the interlocutory nature of this case when it reached the Colorado Supreme Court.

The defense was not able to argue that the trial court was wrong in its findings of law regarding pretext, and there’s clearly at least the suggestion of pretext in this case.

Officer Reichenbach searched the backpack in this case and then took his inventory form back to the vehicle and inventoried the vehicle.

William H. Rehnquist:

But that’s not open to us here, is it?

The trial court did make the finding and we’re ordinarily bound by the trial court’s findings of that sort.

Cary C. Lacklen:

I agree, but this Court is operating in a vacuum because that finding has never been reviewed by the Colorado Supreme Court.

I think that if this Court finds that this case is–

William H. Rehnquist:

Did you make this argument to the Colorado Supreme Court that you’re making here, that they should disregard the trial court’s finding that it was good faith?

Cary C. Lacklen:

–The interlocutory nature of that appeal prevented the defense from raising any findings that went against us.

The only findings that we can argue on interlocutory appeal in Colorado are findings that go against the DA that he certifies to the court.

So we were left without a remedy in the Colorado court for the findings that went against us in the state court.

So the pretext comes to this Court… the pretext nature of this search comes to this Court in a vacuum.

Cary C. Lacklen:

There has been no review of those findings of fact and law by the trial court in the Colorado Supreme Court.

And clearly there’s evidence, at least the suggestion, of a pretextual search in this case.

The officer didn’t start his inventory until after the search of the backpack in his police car.

In fact, the contents of the backpack were not even listed on the impound form.

They were listed on an evidence form that was filed in the case itself for the criminal case for possession of cocaine.

We submit to the Court that on the facts of this case the doctrine that this Court should apply is that a consent to inventory is a prerequisite for a valid inventory search.

That alleviates the need to balance the container issue.

If the Court decides to reach the container issue, we would ask the Court to fashion a doctrine that properly balances in the field inventory context, not in the automobile exception context and not in the incarceration jailhouse context, properly balances the defendant’s Fourth Amendment interests that have been upheld in luggage in Chadwick and Sanders against the governmental interests… protect themselves against false claims, loss of property, or the possibility of dangerous instrumentalities.

The mere possibility of dangerous instrumentalities in these kind of containers clearly argues too much.

If you adopt the prosecution’s argument, then the police can search containers in any situation, even in investigative situations such as Chadwick, because you don’t know if the double-locked footlocker contains a dangerous instrumentality when you take it into your possession to store it at the police station.

Antonin Scalia:

Mr. Lacklen, on this point of whether the Colorado Supreme Court got into the pretextuality issue, what does that suggest, that if we were to reverse the Colorado Supreme Court we would have to remand for them to consider that issue?

Is that what you’re suggesting?

Cary C. Lacklen:

Well, I would suggest that this Court could send this case back to the state court as certiorari improvidently granted, because this case can clearly be analyzed under Belton and, although that has not been briefed and we don’t think that Belton applies, clearly the inventory nature of this case is somewhat muddled by the way that the case came to this Court.

Antonin Scalia:

Well, the Colorado Supreme Court clearly held that this was not a proper inventory search, that even if the inventory aspect of it was not pretextual you couldn’t have an inventory search.

Cary C. Lacklen:

That’s correct.

Antonin Scalia:

So I don’t see why granting certiorari on that issue was improvident.

Now, let’s assume we disagree with you on the outcome of that issue.

What do you suggest the disposition should be?

Cary C. Lacklen:

Well, the case clearly has to be remanded to the state court, because the state court didn’t rule on the state constitutional grounds on which the evidence was originally suppressed.

If the DA were to go back to trial today, after a reversal of the Colorado Supreme Court, he still wouldn’t have any evidence, because the trial court suppressed the evidence on state constitutional grounds.

And we would disagree with the district attorney on the clearness of the Colorado state ruling.

It would be our submission that the Colorado court, although citing the Fourth Amendment, said that the Colorado constitution may exclude this evidence also.

And so it’s not clear that the prosecution wins even if this Court issues what may be an advisory opinion on this issue to the Colorado Supreme Court.

Harry A. Blackmun:

Isn’t it rather unusual that Justice Erickson didn’t take up the state constitutional issue?

Cary C. Lacklen:

Well, we’re still trying to figure that one out in Colorado.

Harry A. Blackmun:

He’s a very states rights conscious judge.

Cary C. Lacklen:

Yes, and we would submit that the wording of his ruling is ambiguous.

It’s clearly not the kind of clear and adequate state around statement that we would have liked under Michigan v. Long.

But we think that what he says is we need not decide the issue of whether the Colorado constitution provides greater protection than the Fourth Amendment, because we find that the Fourth Amendment provides sufficient protection to hold this search unreasonable.

Byron R. White:

Well, you may win the case, whether we expressly remand or not.

Byron R. White:

Our mandates normally say that the case is going to go back to the court from which it came.

And anything that’s still open there I suppose is still open.

Cary C. Lacklen:

It would be.

And all I’m suggesting is that because of the search incident to an arrest possibilities in this case, because of the pretextual vacuum of the facts regarding the regulations themselves, and because of the state, possible separate state constitutional grounds, that certiorari may have been improvidently granted in this case.

Thank you.

William H. Rehnquist:

Thank you, Mr. Lacklen.

Mr. Haried, do you have anything more?

You have four minutes remaining.

John M. Haried:

No, Your Honor.

John Paul Stevens:

Could I ask you one question, since you were kind enough to stand up.

Supposing the container was… say you had a jewelry salesman and the container had a label on it:

“This contains valuables. “

“If the car happens to be impounded, please take it to the police station. “

Could you open it and search it?

John M. Haried:

Yes.

John Paul Stevens:

For what reason?

John M. Haried:

Several reasons.

One, because to prevent against the risk that the police may be falsely accused of having taken something out of the container.

In other words, if there were say two pieces of jewelry in the container and someone coming back later and saying, well, there was only one, or there were three when I originally gave it to the police, something like that.

And also for the purposes of having a line, a clear line for the police to follow, so they don’t have to get into those worthy and unworthy container types of decisions.

William H. Rehnquist:

Thank you, Mr. Haried.

The case is submitted.