Court for Prince George's County Case No. CT170050X
Deborah S. Beachley, Moylan, Charles E., Jr., (Senior Judge,
Specially Assigned), JJ.
frequently result in the police having to impound a
citizen's automobile. For the mutual benefit of police
and citizen alike, such impounding will routinely be
accompanied by an inventorying of the contents of the
automobile. This procedure is not necessarily a part of an
adversarial "cops and robbers" scenario in a
typical criminal investigation and trial. It may be, rather,
what the Supreme Court has characterized as a "community
caretaking function." Cady v. Dombrowski, 413
U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973):
Local police officers . . . frequently
investigate vehicle accidents in which there is no claim of
criminal liability and engage in what, for want of a
better term, may be described as community caretaking
functions, totally divorced from the detection,
investigation, or acquisition of evidence relating to the
violation of a criminal statute.
therefore, must scrupulously forbear from reflexively looking
upon this neutral police function with cynical disdain and
must refrain from cavalierly dismissing such police behavior
as presumptively a subterfuge. A modicum of trust would be
appellee, Daniel A. Paynter, was indicted in Prince
George's County on January 12, 2017 for the possession of
marijuana with the intent to distribute and related offenses.
He moved to have the physical evidence suppressed because of
an alleged violation of the Fourth Amendment. On March 24,
2017, the court granted the motion to suppress.
State's Interlocutory Appeal
State filed a timely appeal on April 3, 2017. The appeal is
authorized by Maryland Code, Courts and Judicial Proceedings
Article, § 12-302(c)(4). Pertinent are subsections
(c)(4)(iii) and (iv):
(iii) Before taking the appeal, the State shall certify to
the court that the appeal is not taken for purposes of delay
and that the evidence excluded or the property required to be
returned is substantial proof of a material fact in the
proceeding. The appeal shall be heard and the decision
rendered within 120 days of the time that the record on
appeal is filed in the appellate court. Otherwise, the
decision of the trial court shall be final.
(iv) Except in a homicide case, if the State appeals on the
basis of this paragraph, and if on final appeal the decision
of the trial court is affirmed, the charges against the
defendant shall be dismissed in the case from which the
appeal was taken. In that case, the State may not prosecute
the defendant on those specific charges or on any other
related charges arising out of the same incident.
record was filed with this Court on June 8, 2017.
Accordingly, our decision must be rendered no later than
October 5, 2017. We heard oral argument on September 5, 2017.
Facts In A Nutshell
than being a routine traffic stop, the case against the
appellee did not begin in any sense as a criminal
investigation. On December 13, 2016, Officer Donald Rohsner
was on routine traffic duty, using radar to look for speeding
violations in the 800 block of Talbot Avenue in Laurel. He
observed the appellee's white 2014 Chevrolet Impala
traveling at "a speed of 50" in a clearly marked
"30 mile per hour zone." He initiated a stop of the
vehicle and relayed the information about the car to
"police dispatch." The appellee was the
vehicle's driver and sole occupant.
Rohsner ran the appellee's information through the Laurel
Police Department's communication system and was informed
that the appellee's driver's license was
"suspended." When the officer further checked the
registration status of the vehicle itself, he learned
"that the tags were suspended through the Motor Vehicle
Administration (M.V.A.) and that they were to be - there was
a pick-up order on them, which means we must remove them and
take them - put them into evidence so the vehicle did not
have tags." During the stop, Officer Rohsner received a
further dispatch that "said 10-0, possibly armed, which
is a caution code that he was possibly armed." Based on
that cautionary alert, "you would want to have a
secondary officer for safety purposes."
Nicholas Cahill responded to the traffic stop as that
secondary officer. Officer Cahill, who also testified,
confirmed that when the police encounter a "pick-up
order, " they "have to take the tags off the
vehicle and we return them to the M.V.A." Officer Cahill
went on to describe the written and established procedure of
the Laurel Police Department with respect to inventories. He
submitted the printed seven-page policy of the Department as
State's Exhibit 1. He further testified that he had
received "field training" on the proper
implementation of the inventory procedure. He explained that
the "purpose of an inventory search is to document all
items in the vehicle, high value, anything you deem might be
in the vehicle that needs to be inventoried." His direct
examination pointed out:
Q. Okay. You indicated that [in] your inventory policy, you
search for valuables.
Q. What -- what constitutes a valuable item in your --
A. It could be a cell phone, hum, any debit cards, money left
in the vehicle, clothing, tools.
Q. Okay. How do you acquire -- which items you encounter
during an inventory search would require safekeeping?
A. We don't take anything for safekeeping. We will
usually just leave that valuable in the vehicle. Hum, and it
will stay in the vehicle while it's impounded.
was no cross-examination.
Cahill testified that he would routinely search the glove
compartment, the central console area, and the trunk because
that is where valuables would likely be found. Officer Cahill
went on to explain that the general orders of the Laurel
Police Department governing inventories require the use of a
motor vehicle tow report form. A copy of that tow report was
offered and admitted as State's Exhibit 2. On that form,
the inventory in this case listed "a blue iPhone in the
center console" and "seven Mac computers in the
trunk of the car." In the course of making the
inventory, the police also discovered and seized 51 grams of
overview of the suppression hearing is significant. The
appellee did not testify and offered neither witnesses nor
evidence on his motion to suppress. With respect to the two
officers called by the State, the appellee asked not a single
question by way of cross-examination.
appellee's argument before the suppression hearing judge
referred to Officer Rohsner's body camera which recorded
his inventory searching. It showed three pairs of tennis
shoes, a spare tire, a jack, and jumper cables that were not
listed as part of the inventory. The appellee's argument
was that the inventory was thereby flawed because it failed
to include all items found in the car. Logically
implicit in such an argument is that such a subsequent
failure to fill out the inventory listing with the requisite
completeness would date back to invalidate the earlier
discovery of the items to be inventoried. The search for the
items, of course, was already fait accompli when the
inventorying officer first puts pen to paper. In extremely
summary terms, however, the trial judge's ruling bought
the appellee's argument:
What the video makes clear is that what the police
conducted is not an inventory, because an inventory lists
everything that is and is not based on a subjective
criteria as to what is quote valuable, unquote. The
motion to suppress is granted as to the contents of the
(Emphasis supplied). That is the sum total of the ruling.
That is the ultimate constitutional ruling that we shall
examine de novo.
Supreme Court And Inventory Searches
a proper sense of precedential proportion, we note that we
are dealing, of course, with Fourth Amendment constitutional
law. The Maryland opinions, which the appellee seems to argue
almost exclusively, are but implementary and/or descriptive
of that Fourth Amendment law. They are not themselves the
core law to be applied. Whenever lawyers start cherry-picking
phrases from random cases (as inevitably they must), it is
always healthy to be able to go back to the original source
instead of relying too heavily on subsequent glosses on that
original source. It is always advisable to be cautious when
using secondary sources. As a word is changed here or an
emphasis is added there in making a gloss, and then a gloss
upon a gloss, it is easy for the gloss to stray from the
original message. If you want to know what South Dakota
v. Opperman holds, therefore, read South Dakota v.
law governing the inventorying by the police of the contents
of an automobile about to be impounded, the original source
is South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct.
3092, 49 L.Ed.2d 1000 (1976). It was and it remains the
Fourth Amendment pole star. In Opperman, as here,
the police determined that the vehicle in question would be
towed to the impounding lot because of a violation of the
traffic (parking) law. It had been illegally parked for a
number of hours in a restricted zone. As in the present case,
no crime other than the illegal parking itself was even
suspected. The officer unlocked the car and, "using a
standard inventory form pursuant to standard police
procedures, " inventoried the contents of the
automobile, "including the contents of the glove
compartment which was unlocked." 428 U.S. at 366. In a
plastic bag in the glove compartment, the police found and
motion to suppress the marijuana on the basis of a Fourth
Amendment violation was denied and he was convicted of
unlawful possession. The Supreme Court of South Dakota,
however, reversed the conviction, holding that there had been
a Fourth Amendment violation. On that issue, the Supreme
Court of the United States then reversed the Supreme Court of
South Dakota. The opinion of the United States Supreme Court
indisputably placed the phenomenon of the inventory
"search" in an essentially non-investigative
context, referring to it expressly as a "caretaking
When vehicles are impounded, local police departments
generally follow a routine practice of securing and
inventorying the automobiles' contents. These
procedures developed in response to three distinct needs: the
protection of the owner's property while it remains in
police custody . . .; the protection the police against
claims or disputes over lost or stolen property . . .; and
the protection of the police from potential danger . . . .
The practice has been viewed as essential to respond
to incidents of theft or vandalism.
These caretaking procedures have almost uniformly been
upheld by the state courts, which by virtue of the
localized nature of traffic regulation have had considerable
occasion to deal with the issue. Applying the Fourth
Amendment standard of "reasonableness, " the
state courts have overwhelmingly concluded that, even if an
inventory is characterized as a "search, " the
intrusion is constitutionally permissible.
428 U.S. at 369-71 (emphasis supplied).
larger philosophical overview of inventorying is important in
this case because the appellee, in attempting to erect a
procedural obstacle course, is trivializing the phenomenon.
The appellee essentially begins with the notion that police
credibility is inherently suspect and that the officer must
pass a series of procedural tests in order to prove his
bona fides. South Dakota v. Opperman itself
gives off no such emanations.
holding that the inventory "search" in that case
did not violate the Fourth Amendment, Opperman set
out two basic requirements. The first is that the police must
be lawfully entitled to impound or otherwise to exert custody
over the vehicle.
The Vermillion police were indisputably engaged in a
caretaking search of a lawfully impounded
automobile. . . . The inventory was conducted only after
the car had been impounded for multiple parking violations.
428 U.S. at 375 (emphasis supplied).
second requirement is that the inventorying must be conducted
pursuant to "standard police procedure."
[W]e conclude that in following standard police
procedures, prevailing throughout the country and
approved by the overwhelming majority of courts, the
conduct of the police was not "unreasonable"
under the Fourth Amendment.
428 U.S. at 376 (emphasis supplied).
Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct. 2605,
77 L.Ed.2d 65 (1983), the inventory search before the Court
was not of an automobile but of a shoulder bag carried by a
defendant as he was arrested and subsequently brought into
the station house. In inventorying the contents of the bag,
the police discovered amphetamine pills inside a cigarette
case. The most important message of the Lafayette
opinion is that in carrying out the inventory process, the
police are not required to find and to use the "least
intrusive manner." Chief Justice Burger, writing for the
The Illinois court held that the search of
respondent's shoulder bag was unreasonable because
"preservation of the defendant's property and
protection of police from claims of lost or stolen property,
'could have been achieved in a less intrusive
Perhaps so, but the real question is not what
"could have been achieved, " but whether the Fourth
Amendment requires such steps; it is not our
function to write a manual on administering routine, neutral
procedures of the stationhouse. Our role is to assure
against violations of the Constitution.
The reasonableness of any particular governmental
activity does not necessarily or invariably turn on the
existence of alternative "less intrusive"
462 U.S. at 647 (emphasis supplied).
Court admonished that this is a practical matter not calling
for too demanding a case of perfection.
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.
462 U.S. at 648 (emphasis supplied).
years after South Dakota v. Opperman, Colorado
v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739
(1987), reaffirmed Opperman's basic attitude
toward inventory searches. A Colorado police officer had
arrested Bertine for driving his van under the influence of
alcohol. Just before a tow truck arrived to take the van to
an impounding lot, one of the officers, in accordance with
local police procedure, inventoried the van's contents.
The inventorying required opening a closed backpack which was
found directly behind the front seat of the van. The backpack
contained a mare's nest of drugs and contraband.
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.
479 U.S. at 369.
noting that the inventory was performed in a "somewhat
slipshod" manner, the trial court nonetheless ruled that
the Fourth Amendment had not been violated. It nonetheless
suppressed the evidence, ruling that the Colorado
constitution had been violated, even if the United States
Constitution had not been. The Supreme Court of Colorado
affirmed the suppression, but on different grounds. It based
its decision on its belief that the federal Fourth Amendment
had been violated. In reversing the Colorado holding, the
United States Supreme Court's opinion reaffirmed its
earlier decision in Opperman.
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.
479 U.S. at 372 (emphasis supplied).
reason the Colorado Supreme Court had found the inventory
unconstitutional was because the police had not explored with
Bertine the possibility of making other ...