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  1. Mark Deniz has been a member of the California State bar for over 11 years.

  2. Mark is involved with the San Diego Bar Association serving on its legal panel.

  3. Due to his legal experience Mark Deniz has the privilege of serving on several attorney panels.

  4. Avvo Top Contributor 2015 DUI

    Mark Deniz is a top contributor on Avvo providing outstanding legal advice. Mark Deniz also serves on the Avvo Legal Panel. The only San Diego Criminal Defense attorney who is on the panel.

  5. Mark Deniz is a member of California DUI Lawyers Association.

  6. Nation's Premier | NACDA | Top Ten Ranking 2014

    Mark Deniz has been named one of The National Academy of Criminal Defense Attorneys “Top 10” Attorneys.

  7. Mark Deniz has been deemed by The Lead Counsel Rating for providing exceptional legal representation to individuals and businesses.

  8. The firm is a member of the better business bureau who ensures quality service for its clients.

  9. The National Trial Lawyers - Top 100 Trial Lawyers

    Mark Deniz has consistently been named one of the National Trial Lawyers Top 100 Trial Lawyers.

  10. Mark Deniz is a member of the prestigious National College for DUI defense and has completed its intensive summer session curriculum conducted at Harvard Law School.

  11. Mark Deniz has received AVVO’s prestigious Clients’ Choice award

  12. Avvo Rating 10.0 Superb Top Attorney DUI

    The prestigious legal rating service AVVO has consistently given Law Offices of Mark Deniz a "Superb" rating.

  13. Proudly Serving the Community Service 2003

    Mark Deniz has proudly served as a member of the California state bar since 2003.

  14. Mark Deniz has consistently been named one of the National Trial Lawyers Top 100 Trial Lawyers.

Inventory Searches and San Diego DUI


The Law Office of Mark Deniz has the privilege of working with some of the best young legal minds in San Diego.  One of these persons is Alyssa Frazier.  Alyssa is a law student at Thomas Jefferson School of Law.  She is on the law review and one of the top of her class. She has an intense desire to help people.   She was invited to write on subjects that she comes across while working with the firm.

Today, she is writing about Inventory Searches in regards to San Diego DUIs




Inventory Searches

When an officer
lawfully impounds a vehicle, they are allowed to search and inventory the items
in a vehicle. This is for the protection of both the officers, as well as owner
of the vehicle. The officers are protected from false accusations of lost or
vandalized property, as well as from any dangerous items that may be in the
vehicle, such as a ticking time bomb. On the other hand, the items in the
vehicle are being protected from being taken by the police. There are not many
limitations on what the police are allowed to search during inventory searches,
as long as impounding the vehicle was lawful and that there are standardized
procedures for the search.

What does this mean if you are arrested
for a DUI?

If an officer arrests
you for a DUI and impounds your vehicle as a result, the officer would be able
to search and inventory any items in your vehicle. The officer is also allowed
to look into containers located in your vehicle, not just inventory the
containers themselves. Thus, if you are arrested for a DUI in San Diego and the
police impound your vehicle, the officers will be able to perform an inventory
search of your vehicle.



Colorado v. Bertine

479 U.S. 367 (1997)

Opinion

Chief Justice REHNQUIST
delivered the opinion of the Court.

On February 10, 1984,
a police officer in Boulder, Colorado, arrested respondent Steven Lee Bertine
for driving while under the influence of alcohol. After Bertine was taken into
custody and before the arrival of a tow truck to take Bertine’s van to an impoundment
lot, a backup officer *369 inventoried the contents of the van. The officer
opened a closed backpack in which he found controlled substances, cocaine
paraphernalia, and a large amount of cash. Bertine was subsequently charged
with driving while under the influence of alcohol, unlawful possession of
cocaine with intent to dispense, sell, and distribute, and unlawful possession
of methaqualone. We **740 are asked to decide whether the Fourth Amendment prohibits
the State from proving these charges with the evidence discovered during the
inventory of Bertine’s van. We hold that it does not.

The backup officer
inventoried the van in accordance with local police procedures, which require a
detailed inspection and inventory of impounded vehicles. He found the backpack
directly behind the frontseat of the van. Inside the pack, the officer observed
a nylon bag containing metal canisters. Opening the canisters, the officer
discovered that they contained cocaine, methaqualone tablets, cocaine
paraphernalia, and $700 in cash. In an outside zippered pouch of the backpack,
he also found $210 in cash in a sealed envelope. After completing the inventory
of the van, the officer had the van towed to an impound lot and brought the
backpack, money, and contraband to the police station.

After Bertine was
charged with the offenses described above, he moved to suppress the evidence
found during the inventory search on the ground, inter alia, that the search of the closed backpack and containers
exceeded the permissible scope of such a search under the Fourth Amendment. The
Colorado trial court ruled that probable cause supported Bertine’s arrest and
that the police officers had made the decisions to impound the vehicle and to conduct
a thorough inventory search in good faith. Although noting that the inventory
of the vehicle was performed in a “somewhat slipshod” manner, the District
Court concluded that “the search of the backpack was done for the purpose of
protecting the *370 owner’s property, protection of the police from subsequent
claims of loss or stolen property, and the protection of the police from
dangerous instrumentalities.” App. 81–83. The court observed that the standard
procedures for impounding vehicles mandated a “detailed inventory involving the
opening of containers and the listing of [their] contents.” Id., at 81. Based on these findings, the
court determined that the inventory search did not violate Bertine’s rights
under the Fourth Amendment of the United States Constitution. Id., at 83. The court, nevertheless,
granted Bertine’s motion to suppress, holding that the inventory search
violated the Colorado Constitution.

On the State’s
interlocutory appeal, the Supreme Court of Colorado affirmed. 706 P.2d 411 (1985).
In contrast to the District Court, however, the Colorado Supreme Court premised
its ruling on the United States Constitution. The court recognized that in South Dakota v. Opperman, 428 U.S. 364,
96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), we had held inventory searches of
automobiles to be consistent with the Fourth Amendment, and that in Illinois v. Lafayette, 462 U.S. 640, 103
S.Ct. 2605, 77 L.Ed.2d 65 (1983), we had held that the inventory search of
personal effects of an arrestee at a police station was also permissible under
that Amendment. The Supreme Court of Colorado felt, however, that our decisions
in Arkansas v. Sanders, 442 U.S. 753,
99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), and United
States v. Chadwick
, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977),
holding searches of closed trunks and suitcases to violate the Fourth
Amendment, meant that Opperman and Lafayette did not govern this case.

We granted certiorari
to consider the important and recurring question of federal law decided by the
*371 **741 Colorado Supreme Court. 475 U.S. 1081, 106 S.Ct. 1457, 89 L.Ed.2d
715 (1986). As that court recognized, inventory searches are now a well-defined
exception to the warrant requirement of the Fourth Amendment. See Lafayette, supra, 462 U.S., at 643, 103 S.Ct., at 2608; Opperman, supra, 428
U.S., at 367–376, 96 S.Ct., at 3096–3100. The policies behind the warrant
requirement are not implicated in an inventory search, Opperman, 428 U.S., at 370, n. 5, 96 S.Ct., at 3097, n. 5, nor is
the related concept of probable cause:

“The
standard of probable cause is peculiarly related to criminal investigations,
not routine, noncriminal procedures…. The probable-cause approach is
unhelpful when analysis centers upon the reasonableness of routine
administrative caretaking functions, particularly when no claim is made that
the protective procedures are a subterfuge for criminal investigations.” Ibid.

See
also United States v. Chadwick, supra, 433 U.S., at 10, n. 5, 97 S.Ct.,
at 2482, n. 5. For these reasons, the Colorado Supreme Court’s reliance on Arkansas v. Sanders, supra, and United States v. Chadwick,
supra, was incorrect. Both of these cases concerned searches solely for the
purpose of investigating criminal conduct, with the validity of the searches
therefore dependent on the application of the probable-cause and warrant
requirements of the Fourth Amendment.

By contrast, an
inventory search may be “reasonable” under the Fourth Amendment even though it
is not conducted pursuant to a warrant based upon probable cause. In *372 Opperman, this Court assessed the
reasonableness of an inventory search of the glove compartment in an abandoned
automobile impounded by the police. We found that inventory procedures serve to
protect an owner’s property while it is in the custody of the police, to insure
against claims of lost, stolen, or vandalized property, and to guard the police
from danger. In light of these strong governmental interests and the diminished
expectation of privacy in an automobile, we upheld the search. In reaching this
decision, we observed that our cases accorded deference to police caretaking
procedures designed to secure and protect vehicles and their contents within
police custody. See Cooper v. California,
386 U.S. 58, 61–62, 87 S.Ct. 788, 790–791, 17 L.Ed.2d 730 (1967); Harris v. United States, 390 U.S. 234,
236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067 (1968); Cady v. Dombrowski, 413 U.S. 433, 447–448, 93 S.Ct. 2523, 2530–2531,
37 L.Ed.2d 706 (1973).

In our more recent
decision, Lafayette, a police officer
conducted an inventory search of the contents of a shoulder bag in the
possession of an individual being taken into custody. In deciding whether this
search was reasonable, we recognized that the search served legitimate
governmental interests similar to those identified in Opperman. We determined that those interests outweighed the
individual’s Fourth Amendment interests and upheld the search.

In the present case,
as in Opperman and Lafayette, there was no showing that the
police, who were following standardized procedures, acted in bad faith or for
the sole purpose of investigation. In addition, the governmental interests
justifying the inventory searches in Opperman
and Lafayette are *373 nearly the same as **742 those which obtain here. In
each case, the police were potentially responsible for the property taken into
their custody. By securing the property, the police protected the property from
unauthorized interference. Knowledge of the precise nature of the property
helped guard against claims of theft, vandalism, or negligence. Such knowledge
also helped to avert any danger to police or others that may have been posed by
the property.

The Supreme Court of
Colorado opined that Lafayette was
not controlling here because there was no danger of introducing contraband or
weapons into a jail facility. Our opinion in Lafayette, however, did not suggest that the station-house setting
of the inventory search was critical to our holding in that case. Both in the
present case and in Lafayette, the
common governmental interests described above were served by the inventory
searches.

The Supreme Court of
Colorado also expressed the view that the search in this case was unreasonable
because Bertine’s van was towed to a secure, lighted facility and because
Bertine himself could have been offered the opportunity to make other
arrangements for the safekeeping of his property. But the security of the
storage facility does not completely eliminate the need for inventorying; the
police may still wish to protect themselves or the owners of the lot against
false claims of theft or dangerous instrumentalities. And while giving Bertine
an opportunity to make alternative *374 arrangements would undoubtedly have
been possible, we said in Lafayette:

“[T]he
real question is not what ‘could have been achieved,’ but whether the Fourth
Amendment requires such steps …

“The
reasonableness of any particular governmental activity does not necessarily or
invariably turn on the existence of alternative ‘less intrusive’ means.” Lafayette, 462 U.S., at 647, 103 S.Ct.,
at 2610 (emphasis in original).

See Cady v. Dombrowski, supra, 413 U.S., at
447, 93 S.Ct., at 2530; United States v.
Martinez-Fuerte
, 428 U.S. 543, 557, n. 12, 96 S.Ct. 3074, 3082, n. 12, 49
L.Ed.2d 1116 (1976). We conclude that here, as in Lafayette, reasonable police regulations relating to inventory
procedures administered in good faith satisfy the Fourth Amendment, even though
courts might as a matter of hindsight be able to devise equally reasonable
rules requiring a different procedure.

The Supreme Court of
Colorado also thought it necessary to require that police, before inventorying
a container, weigh the strength of the individual’s privacy interest in the
container against the possibility that the container might serve as a
repository for dangerous or valuable items. We think that such a requirement is
contrary to our decisions in *375 Opperman
and Lafayette, and by analogy to our
decision in United **743 States v. Ross, 456 U.S. 798, 102 S.Ct.
2157, 72 L.Ed.2d 572 (1982):

“Even
if less intrusive means existed of protecting some particular types of
property, it would be unreasonable to expect police officers in the everyday
course of business to make fine and subtle distinctions in deciding which
containers or items may be searched and which must be sealed as a unit.” Lafayette, supra, 462 U.S., at 648, 103 S.Ct., at 2610.

“When
a legitimate search is under way, and when its purpose and its limits have been
precisely defined, nice distinctions between closets, drawers, and containers,
in the case of a home, or between glove compartments, upholstered seats,
trunks, and wrapped packages, in the case of a vehicle, must give way to the
interest in the prompt and efficient completion of the task at hand.” United States v. Ross, supra, 456 U.S., at 821, 102 S.Ct., at
2170.

We reaffirm these
principles here: “ ‘[a] single familiar standard is essential to guide police
officers, who have only limited time and expertise to reflect on and balance
the social and individual interests involved in the specific circumstances they
confront.’ ” Lafayette, supra, 462 U.S., at 648, 103 S.Ct., at
2610 (quoting New York v. Belton, 453
U.S. 454, 458, 101 S.Ct. 2860, 2863, 69 L.Ed.2d 768 (1981)).

Bertine finally
argues that the inventory search of his van was unconstitutional because
departmental regulations gave the police officers discretion to choose between
impounding his van and parking and locking it in a public parking place. The
Supreme Court of Colorado did not rely on this argument in reaching its
conclusion, and we reject it. Nothing in Opperman
or Lafayette prohibits the exercise
of police discretion so long as that discretion is exercised according to
standard criteria and on the basis of something other than suspicion of
evidence of criminal activity. Here, the discretion afforded the Boulder police
was exercised in light of *376 standardized criteria, related to the
feasibility and appropriateness of parking and locking a vehicle rather than
impounding it.7 There was no showing that the police chose to impound Bertine’s
van in order to investigate suspected criminal activity.

While both Opperman and Lafayette are distinguishable from the present case on their facts,
we think that the principles enunciated in those cases govern the present one.
The judgment of the Supreme Court of Colorado is therefore

Reversed.

Justice BLACKMUN,
with whom Justice POWELL and Justice O’CONNOR join, concurring.

The Court today holds
that police officers may open closed containers while conducting a routine
inventory search of an impounded vehicle. I join the Court’s opinion, but write
separately to underscore the importance of having such inventories conducted
only pursuant to standardized police procedures. The underlying rationale for
allowing an inventory exception to the Fourth Amendment warrant rule is that
police officers are not vested with discretion to determine the scope of the
inventory search. See South Dakota v.
Opperman
, 428 U.S. 364, 382–383, 96 S.Ct. 3092, 3103–3104, 49 L.Ed.2d 1000
(1976) (POWELL, J., concurring). This absence of discretion ensures that
inventory searches will not be used as a purposeful and general means of
discovering evidence of crime. Thus, it is **744 permissible *377 for police
officers to open closed containers in an inventory search only if they are
following standard police procedures that mandate the opening of such
containers in every impounded vehicle. As the Court emphasizes, the trial court
in this case found that the Police Department’s standard procedures did mandate
the opening of closed containers and the listing of their contents. See ante, at 742, n. 6.

Justice MARSHALL,
with whom Justice BRENNAN joins, dissenting.

Recognizing that
“both Opperman and Lafayette are distinguishable from the
present case on their facts,” ante, at 743, the majority applies the balancing
test enunciated in those cases to uphold as reasonable the inventory of a
closed container in a car impounded when its driver was placed under arrest.
However, the distinctive facts of this case require a different result. This
search—it cannot legitimately be labeled an inventory—was unreasonable and
violated the Fourth Amendment. Unlike the inventories in South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d
1000 (1976), and Illinois v. Lafayette,
462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983), it was not conducted
according to standardized procedures. Furthermore, the governmental interests
justifying the intrusion are significantly weaker than the interests identified
in either Opperman or Lafayette and the expectation of privacy
is considerably stronger.

I

As the Court
acknowledges, ante, at 742 and 743,
inventory searches are reasonable only if conducted according to standardized
procedures. In both Opperman and Lafayette, the Court relied on the
absence of police discretion in determining that the inventory searches in
question were reasonable. Chief Justice Burger’s opinion in Opperman repeatedly referred to this
standardized nature of inventory procedures. See 428 U.S., at 369, 372, 376, 96
S.Ct., at 3097, 3098, 3100. Justice POWELL’s concurring opinion in that case
also *378 stressed that “no significant discretion is placed in the hands of
the individual officer: he usually has no choice as to the subject of the
search or its scope.” Id., at 384, 96
S.Ct., at 3104 (footnote omitted). Similarly, the Court in Lafayette emphasized the standardized procedure under which the station-house
inventory was conducted. See 462 U.S., at 646, 647, 648, 103 S.Ct., at 2609,
2610, see also id., at 649, 103
S.Ct., at 2611 (MARSHALL, J., concurring in judgment). In assessing the
reasonableness of searches conducted in limited situations such as these, where
we do not require probable cause or a warrant, we have consistently emphasized
the need for such set procedures: “standardless and unconstrained discretion is
the evil the Court has discerned when in previous cases it has insisted that the
discretion of the official in the field be circumscribed, at least to some
extent.” Delaware v. Prouse, 440 U.S.
648, 661, 99 S.Ct. 1391, 1400, 59 L.Ed.2d 660 (1979). See Almeida-Sanchez v. United States, 413 U.S. 266, 270, 93 S.Ct. 2535,
2538, 37 L.Ed.2d 596 (1973); Cady v.
Dombrowski
, 413 U.S. 433, 443, 93 S.Ct. 2523, 2529, 37 L.Ed.2d 706 (1973); Harris v. United States, 390 U.S. 234,
235, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067 (1968); Camara v. Municipal Court, 387 U.S. 523, 532–533, 87 S.Ct. 1727,
1732–1733, 18 L.Ed.2d 930 (1967).

The Court today
attempts to evade these clear prohibitions on unfettered police discretion by
declaring that “the discretion afforded the Boulder police was exercised in
light of standardized criteria, related to the feasibility and appropriateness
of parking and locking a vehicle rather than impounding it.” Ante, at 743. This vital assertion is
flatly contradicted by the record in this case. The officer who conducted the
inventory, Officer Reichenbach, testified at the suppression hearing that the
decision not to “park and lock” respondent’s vehicle was his “own individual
discretionary decision.” Tr. 76. Indeed, application **745 of these supposedly
standardized “criteria” upon which the Court so heavily relies would have yielded
a different result in this case. Since there was ample public parking adjacent
to the intersection where respondent was stopped, consideration of
“feasibility” would certainly have militated in favor of the “park and lock”
*379 option, not against it. I do not comprehend how consideration of
“appropriateness” serves to channel a field officer’s discretion; nonetheless,
the “park and lock” option would seem particularly appropriate in this case,
where respondent was stopped for a traffic offense and was not likely to be in
custody for a significant length of time.

Indeed, the record
indicates that no standardized criteria limit a Boulder police officer’s
discretion. According to a departmental directive, after placing a driver under
arrest, an officer has three options for disposing of the vehicle. First, he
can allow a third party to take custody. Second, the officer or the driver
(depending on the nature of the arrest) may take the car to the nearest public
parking facility, lock it, and take the keys. Finally, the officer can do what
was done in *380 this case: impound the vehicle, and search and inventory its
contents, including closed containers.4

Under the first
option, the police have no occasion to search the automobile. Under the “park
and lock” option, “[c]losed containers that give no indication of containing
either valuables or a weapon may not be opened and the contents searched (i.e.,
inventoried).” App. 92–93 (emphasis added). Only if the police choose the third
option are they entitled to search closed containers in the vehicle. Where the
vehicle is not itself evidence of a crime, as in this case, the police
apparently have totally unbridled discretion as to which procedure to use. See
706 P.2d 411, 413, n. 3 (Colo.1985) (“[T]he Boulder Police Department’s
regulations and rules do not require that **746 an automobile be inventoried
and searched in accordance with the procedures followed in this *381 case”).
Consistent with this conclusion, Officer Reichenbach testified that such
decisions were left to the discretion of the officer on the scene. App. 60.

Once a Boulder police
officer has made this initial completely discretionary decision to impound a
vehicle, he is given little guidance as to which areas to search and what sort
of items to inventory. The arresting officer, Officer Toporek, testified at the
suppression hearing as to what items would be inventoried: “That would I think
be very individualistic as far as what an officer may or may not go into. I
think whatever arouses his suspicious [sic ] as far as what may be contained in
any type of article in the car.” Id.,
at 78. In application, these so-called procedures left the breadth of the
“inventory” to the whim of the individual officer. Clearly, “[t]he practical
effect of this system is to leave the [owner] subject to the discretion of the
official in the field.” Camara v.
Municipal Court
, 387 U.S., at 532, 87 S.Ct., at 1732.

Inventory searches
are not subject to the warrant requirement because they are conducted by the
government as part of a “community caretaking” function, “totally divorced from
the detection, investigation, or acquisition of evidence relating to the
violation of a criminal statute.” Cady v.
Dombrowski
, 413 U.S., at 441, 93 S.Ct., at 2528. Standardized procedures
are necessary to ensure that this narrow exception is not improperly used to
justify, after the fact, a warrantless investigative foray. Accordingly, to
invalidate a search that is conducted without established procedures, it is not
necessary to establish that the police actually acted in bad faith, or that the
inventory was in fact a “pretext.” By allowing the police unfettered
discretion, Boulder’s discretionary scheme, like the random spot checks in Delaware v. Prouse, is unreasonable
because of the “ ‘grave danger’ of abuse of discretion.” 440 U.S., at 662, 99
S.Ct., at 1400.

II

In South Dakota v. Opperman, 428 U.S. 364,
96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), and Illinois
v. Lafayette
, 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983), both of
which *382 involved inventories conducted pursuant to standardized procedures,
we balanced the individual’s expectation of privacy against the government’s
interests to determine whether the search was reasonable. Even if the search in
this case did constitute a legitimate inventory, it would nonetheless be
unreasonable under this analysis.

A

The Court greatly
overstates the justifications for the inventory exception to the Fourth
Amendment. Chief Justice BURGER, writing for the majority in Opperman, relied on three governmental
interests to justify the inventory search of an unlocked glove compartment in
an automobile impounded for overtime parking: (i) “the protection of the
owner’s property while it remains in police custody”; (ii) “the protection of
the police against claims or disputes over lost or stolen property”; and (iii)
“the protection of the police from potential danger.” 428 U.S., at 369, 96
S.Ct., at 3097. The majority finds that “nearly the same” interests obtain in
this case. See ante, at 742. As
Justice POWELL’s concurring opinion in Opperman
reveals, however, only the first of these interests is actually served by an
automobile inventory search.

The
protection-against-claims interest did not justify the inventory search either
in Opperman, see 428 U.S., at 378, n.
3, 96 S.Ct., at n. 3 (POWELL, J., concurring), or in this case. As the majority
apparently concedes, ante, at 742, the use of secure impoundment facilities
effectively eliminates this concern. As *383 to false claims, **747
“inventories are [not] a completely effective means of discouraging false
claims, since there remains the possibility of accompanying such claims with an
assertion that an item was stolen prior to the inventory or was intentionally
omitted from the police records.” 428 U.S., at 378–379, 96 S.Ct., at 3101–3102
(POWELL, J., concurring). See also id.,
at 391, and nn. 9 and 10, 96 S.Ct., at 3108, and nn. 9 and 10 (MARSHALL, J.,
dissenting); 2 W. LaFave, Search and Seizure § 5.5, p. 360, n. 50 (1978 and
Supp.1986).

Officer Reichenbach’s
inventory in this case would not have protected the police against claims
lodged by respondent, false or otherwise. Indeed, the trial court’s
characterization of the inventory as “slip-shod” is the height of
understatement. For example, Officer Reichenbach failed to list $150 in cash
found in respondent’s wallet or the contents of a sealed envelope marked
“rent,” $210, in the relevant section of the property form. Tr. 40–41; App.
41–42. His reports make no reference to other items of value, including respondent’s
credit cards, and a converter, a hydraulic jack, and a set of tire chains,
worth a total of $125. Tr. 41, 62–63. The $700 in cash found in respondent’s
backpack, along with the contraband, appeared only on a property form completed
later by someone other than Officer Reichenbach. Id., at 81–82. The interior of the vehicle was left in disarray,
id., at 99, and the officer “inadvertently” retained respondent’s
keys—including his house keys—for two days following his arrest. Id., at 116, 133–134.

The third
interest—protecting the police from potential danger—failed to receive the
endorsement of a majority of the Court in Opperman.
After noting that “there is little danger associated with impounding unsearched
vehicles,” Justice POWELL recognized that “there does not appear to be any
effective way of identifying in advance those circumstances or classes of
automobile impoundments which represent a greater risk.” 428 U.S., at 378, 96
S.Ct., at 3101. See also id., at 390,
96 S.Ct., at 3107 (MARSHALL, J., dissenting) (safety rationale “cannot justify
the search of every car upon the basis of undifferentiated possibility *384 of
harm”). As with the charge of overtime parking in Opperman, there is nothing in the nature of the offense for which
respondent was arrested that suggests he was likely to be carrying weapons,
explosives, or other dangerous items. Cf. Cady
v. Dombrowski
, 413 U.S., at 436–437, 93 S.Ct., at 2525–2526 (police
reasonably believed that the defendant’s service revolver was in the car). Not
only is protecting the police from dangerous instrumentalities an attenuated
justification for most automobile inventory searches, but opening closed
containers to inventory the contents can only increase the risk. In the words
of the District Court in United States v.
Cooper
, 428 F.Supp. 652, 654–655 (SD Ohio 1977): “The argument that the
search was necessary to avoid a possible booby-trap is … easily refuted. No
sane individual inspects for booby-traps by simply opening the container.”

Thus, only the
government’s interest in protecting the owner’s property actually justifies an
inventory search of an impounded vehicle. See 428 U.S., at 379, 96 S.Ct., at
3102 (POWELL, J., concurring); id.,
at 391, 96 S.Ct., at 3108 (MARSHALL, J., dissenting). While I continue to
believe that preservation of property does not outweigh the privacy and
security interests protected by the Fourth Amendment, I fail to see how
preservation can even be asserted as a justification for the search in this
case. In Opperman, the owner of the
impounded car was not available to safeguard his possessions, see id., at 375,
96 S.Ct., at 3100, and it could plausibly be argued that, in his absence, the
police were **748 entitled to act for his presumed benefit. See also Cady v. Dombrowski, supra, 413 U.S., at 436, 93 S.Ct., at 2525 (comatose defendant).
When the police conducted the inventory in Opperman,
they could not predict how long the car would be left in their possession. See
428 U.S., at 379, 96 S.Ct., at 3102 (POWELL, J., concurring) (“[M]any owners
might leave valuables in their automobiles temporarily that they would not
leave there unattended for the several days that police custody may last”); cf.
Cooper v. California, 386 U.S. 58,
61, 87 S.Ct. 788, 790, 17 L.Ed.2d 730 (1967) (police retained car for four
months pending forfeiture; length of time considered by the Court in assessing
*385 reasonableness of inventory). In this case, however, the owner was
“present to make other arrangements for the safekeeping of his belongings,” Opperman, 428 U.S., at 375, 96 S.Ct., at
3100, yet the police made no attempt to ascertain whether in fact he wanted
them to “safeguard” his property. Furthermore, since respondent was charged
with a traffic offense, he was unlikely to remain in custody for more than a
few hours. He might well have been willing to leave his valuables unattended in
the locked van for such a short period of time. See Tr. 110 (had he been given
the choice, respondent indicated at the suppression hearing that he “would have
parked [the van] in the lot across the street [and] [h]ad somebody come and get
it”).

Thus, the
government’s interests in this case are weaker than in Opperman, but the search here is much more intrusive. Opperman did not involve a search of
closed containers or other items that “ ‘touch upon intimate areas of an
individual’s personal affairs,’ ” 428 U.S., at 380, and n. 7, 96 S.Ct., at
3102, n. 7 (POWELL, J., concurring) (quoting California Bankers Assn. v. Shultz, 416 U.S. 21, 78–79, 94 S.Ct. 1494,
1525–1526, 39 L.Ed.2d 812 (1974) (POWELL, J., concurring)); nor can the Court’s
opinion be read to authorize the inspection of “containers which might
themselves be sealed, removed and secured without further intrusion.” 428 U.S.,
at 388, n. 6, 96 S.Ct., at 3106, n. 6 (MARSHALL, J., dissenting). To expand the
Opperman rationale to include
containers in which the owner clearly has a reasonable expectation of privacy,
the Court relies on Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct. 2605, 77
L.Ed.2d 65 (1983). Such reliance is fundamentally misplaced, however; the
inventory in Lafayette was justified by considerations which are totally absent
in this context.

In Lafayette, we upheld a station-house
inventory search of an arrestee’s shoulder bag. Notwithstanding the Court’s
assertions to the contrary, ante, at 742, the inventory in that case was
justified primarily by compelling governmental interests unique to the station
house, preincarceration context. There is a powerful interest in preventing the
introduction *386 of contraband or weapons into a jail. “Arrested persons have
also been known to injure themselves—or others—with belts, knives, drugs, or
other items on their person while being detained. Dangerous
instrumentalities—such as razor blades, bombs, or weapons—can be concealed in
innocent-looking articles taken from the arrestee’s possession.” 462 U.S., at
646, 103 S.Ct., at 2609. Removing such items from persons about to be
incarcerated is necessary to reasonable jail security; once these items have
been identified and removed, “inventorying them is an entirely reasonable
administrative procedure.” Ibid.
Although LAFAYETTE **749 also
involved the property justifications relied on in Opperman, I do not believe it can fairly be read to expand the
scope of inventory searches where the pressing security concerns of the station
house are absent.

B

Not only are the
government’s interests weaker here than in Opperman
and Lafayette, but respondent’s
privacy interest is greater. In upholding the search in Opperman, the Court emphasized the *387 fact that the defendant had
a diminished expectation of privacy in his automobile, due to “pervasive and
continuing governmental regulation and controls, including periodic inspection
and licensing requirements” and “the obviously public nature of automobile
travel.” 428 U.S., at 368, 96 S.Ct., at 3096. See also id., at 379, 96 S.Ct., at 3102 (POWELL, J., concurring); but see id., at 386–388, 96 S.Ct., at 3105–3106
(MARSHALL, J., dissenting). Similarly, in Lafayette,
the Court emphasized the fact that the defendant was in custody at the time the
inventory took place. 462 U.S., at 645–646, 103 S.Ct., at 2609.

Here the Court
completely ignores respondent’s expectation of privacy in his backpack.
Whatever his expectation of privacy in his automobile generally, our prior decisions
clearly establish that he retained a reasonable expectation of privacy in the
backpack and its contents. See Arkansas
v. Sanders
, 442 U.S. 753, 762, 99 S.Ct., 2586, 2592, 61 L.Ed.2d 235 (1979)
(“[L]uggage is a common repository for one’s personal effects, and therefore is
inevitably associated with the expectation of privacy”); United States v. Chadwick, 433 U.S. 1, 13, 97 S.Ct. 2476, 2484, 53
L.Ed.2d 538 (1977) (“[A] person’s expectations of privacy in personal luggage
are substantially greater than in an automobile”). Indeed, the Boulder police
officer who conducted the inventory acknowledged that backpacks commonly serve
as repositories for personal effects. Thus, even if the governmental interests
in this case were the same as those in Opperman,
they would nonetheless be outweighed by respondent’s comparatively greater
expectation of privacy in his luggage.

III

In Coolidge v. New Hampshire, 403 U.S. 443,
461–462, 91 S.Ct. 2022, 2035, 29 L.Ed.2d 564 (1971), a plurality of this Court
stated: “The word ‘automobile’ is not a talisman in whose presence the Fourth
Amendment fades away and disappears.” By upholding the search in this case, the
Court not only ignores that principle, but creates another talisman to overcome
the requirements of the Fourth Amendment—the term “inventory.” Accordingly, I
dissent.


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