Unfortunately for the average citizen, there are many civil and criminal traffic violations for which law enforcement is authorized to stop a vehicle. Speeding, careless driving, failure to maintain a lane, reckless driving, driving under the influence, and driving on a suspended driver’s license are just a few of the more common examples.
When the stop is for something that justifies the arrest of the driver, law enforcement must then decide upon what to do with the vehicle. In many instances, they will ask for consent to search the vehicle. A driver/owner can always say “no” in this circumstance. In fact, it is recommended to always say “no” by this author. Even if you are not “riding dirty,” who wants to sit around and waste their time while law enforcement goes on a fishing expedition? If consent is not given, law enforcement will then determine if they have some exception to the warrant requirement to gain access to the vehicle. A common technique, and the subject of this article, is to impound the vehicle and then to conduct an inventory search.
What is an Inventory Search?
An inventory search is simply a way of viewing and then cataloguing the items the law enforcement agency is seizing when it impounds the vehicle. See, e.g., Whren v. United States, 517 U.S. 806, 811 n.1, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996) (“An inventory search is the search of property lawfully seized and detained, in order to ensure that it is harmless, to secure valuable items (such as might be kept in a towed car), and to protect against false claims of loss or damage.”). An inventory search serves the needs of protection of the owner’s property, protection of police against claims of lost or stolen property, and protection of police against potential danger from such things as explosives. Rodriguez v. State, 702 So. 2d 259, 262 (Fla. 3d DCA 1997) (citing Colorado v. Bertine, 479 U.S. 367, 372, 107 S. Ct. 738, 93 L. Ed. 2d 739 (1987)). Ross v. State, 319 So.3d 807 (Fla. 2d DCA 2021).
Obviously, there are many opportunities to abuse this process. As such, courts have determined that, for inventory searches to be warranted under the Fourth Amendment, certain requirements must be met before such a search will be allowed.
When is an Inventory Search Allowable?
As an initial matter, before an inventory search can be legal, there must be a law enforcement policy on when to impound a vehicle and then how to conduct the inventory search. If such a policy does not exist, the inventory search will not be upheld when challenged in court. Simply put on any allegation of Fourth Amendment violation where there is not a warrant, the State has the burden of proving an exception to the warrant requirement. An inventory search is such an exception. Courts have unanimously held that such searches must be pursuant to a department policy. If there is no policy, the State cannot prove the exception. State v. Pagan, 31 Fla. L. Weekly Supp. 582a (Fla. 9th Cir. Court, February 22, 2024).
In Ross v. State, 319 So.3d 807 (Fla. 2d DCA 2021), the Court held that a law enforcement agency must show that it is operating under a standard of some sort—that is, a directive, a guidepost, a benchmark, a criteria—that informs and potentially curtails the exercise of an officer’s discretion before a law enforcement officer can impound a vehicle and conduct an inventory search. And since the inventory search is a kind of warrantless search, it is the State’s burden to put evidence of that standard before the court. See Badkey v. State, 336 So. 2d 711, 711 (Fla. 4th DCA 1976) (concluding that trial court erred in denying motion to suppress where “the State failed to meet its burden of proof in showing the constitutional validity of [the inventory] search”).
In Ross, the State failed to present any evidence that the deputy was acting in accordance with any established governing standard when he decided to impound Mr. Ross’s car—or that such a standard even existed. And given the deputy’s admission that he intended to impound Mr. Ross’s car “no matter what,” it cannot be said that a standardized criteria guided his confiscation and subsequent search of Mr. Ross’s property.
The facts of this case make the absence of a standard all the more glaring: an operable car was parked in the early afternoon in a parking space at a public park where, apparently, others had left cars overnight “all the time,” and the deputy impounding the car was unable to articulate any basis for his concern that “something” (whatever it might be) could happen if the car was left in the park while Mr. Ross was booked.
The circuit court determined that there was no indication of bad faith or pretext and that the impoundment and inventory search were “due to department policy.” But as in Patty v. State, 768 So. 2d 1126 (Fla. 2d DCA 2000), there was no competent, substantial evidence before the court as to what that policy was. There was nothing in the record indicating what criteria guided the deputy’s initial decision to impound this vehicle. Without such a policy, the search was illegal and any evidence recovered from the search had to be suppressed.
Lastly, if there is a policy, the search must be conducted in accord with the policy. If it is not, suppression will be warranted as well.