U.S. Supreme Court

Colorado v. Bertine,479U.S. 367 (1987)Colorado v. Bertine

No. 85-889

Argued November 10,1986

Decided January 14,1987

479U.S. 367

CERTIORARI TO THE SUPREME COURT OFCOLORADO

Syllabus

A Boulder, Colorado, police officer arrested respondent fordriving his van while under the influence of alcohol. Afterrespondent was taken into custody and before a tow truck arrived totake the van to an impoundment lot, another officer, acting inaccordance with local police procedures, inventoried the van'scontents, opening a closed backpack in which he found variouscontainers holding controlled substances, cocaine paraphernalia,and a large amount of cash. Prior to his trial on charges includingdrug offenses, the state trial court granted respondent's motion tosuppress the evidence found during the inventory search. Althoughthe court determined that the search did not violate respondent'srights under the Fourth Amendment of the Federal Constitution, itheld that the search violated the Colorado Constitution. TheColorado Supreme Court affirmed, but premised its ruling on theFederal Constitution.

Held: The Fourth Amendment does not prohibit the Statefrom proving the criminal charges with the evidence discoveredduring the inventory search of respondent's van. This case iscontrolled by the principles governing inventory searches ofautomobiles and of an arrestee's personal effects, as set forth inSouth Dakota v. Opperman,428 U.S. 364, andIllinois v. Lafayette,462 U.S. 640, rather than those governing searches of closedtrunks and suitcases conducted solely for the purpose ofinvestigating criminal conduct.United States v. Chadwick,433 U. S. 1, andArkansas v. Sanders,442 U. S. 753,distinguished. The policies behind the warrant requirement, and therelated concept of probable cause, are not implicated in aninventory search, which serves the strong governmental interests inprotecting an owner's property while it is in police custody,insuring against claims of lost, stolen, or vandalized property,and guarding the police from danger. There was no showing here thatthe police, who were following standardized caretaking procedures,acted in bad faith or for the sole purpose of investigation.Police, before inventorying a container, are not required to weighthe strength of the individual's privacy interest in the containeragainst the possibility that the container might serve as arepository for dangerous or valuable items. There is no merit tothe contention that the search of respondent's van wasunconstitutional because departmental regulations gave the policediscretion to choose between impounding the van and parking

Page 479 U. S. 368

and locking it in a public parking place. The exercise of policediscretion is not prohibited so long as that discretion isexercised -- as was done here -- according to standard criteria andon the basis of something other than suspicion of evidence ofcriminal activity. Pp.479 U. S.371-376.

706 P.2d411, reversed.

REHNQUIST, C. J., delivered the opinion of the Court, in whichWHITE, BLACKMUN, POWELL, STEVENS, O'CONNOR, and SCALIA, JJ.,joined. BLACKMUN, J., filed a concurring opinion, in which POWELLand O'CONNOR, JJ., joined,post, p.479 U. S. 376.MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J.,joined,post, p.479 U. S.377.

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 theinfluence of alcohol. After Bertine was taken into custody andbefore the arrival of a tow truck to take Bertine's van to animpoundment lot, [Footnote 1] abackup officer

Page 479 U. S. 369

inventoried the contents of the van. The officer opened a closedbackpack in which he found controlled substances, cocaineparaphernalia, and a large amount of cash. Bertine was subsequentlycharged with driving while under the influence of alcohol, unlawfulpossession of cocaine with intent to dispense, sell, anddistribute, and unlawful possession of methaqualone. We are askedto decide whether the Fourth Amendment prohibits the State fromproving these charges with the evidence discovered during theinventory of Bertine's van. We hold that it does not.

The backup officer inventoried the van in accordance with localpolice procedures, which require a detailed inspection andinventory of impounded vehicles. He found the backpack directlybehind the front seat of the van. Inside the pack, the officerobserved a nylon bag containing metal canisters. Opening thecanisters, the officer discovered that they contained cocaine,methaqualone tablets, cocaine paraphernalia, and $700 in cash. Inan outside zippered pouch of the backpack, he also found $210 incash in a sealed envelope. After completing the inventory of thevan, the officer had the van towed to an impound lot and broughtthe backpack, money, and contraband to the police station.

After Bertine was charged with the offenses described above, hemoved to suppress the evidence found during the inventory search onthe ground,inter alia, that the search of the closedbackpack and containers exceeded the permissible scope of such asearch under the Fourth Amendment. The Colorado trial court ruledthat probable cause supported Bertine's arrest, and that the policeofficers had made the decisions to impound the vehicle and toconduct a thorough inventory search in good faith. Although notingthat the inventory of the vehicle was performed in a "somewhatslipshod" manner, the District Court concluded that

"the search of the backpack was done for the purpose ofprotecting the

Page 479 U. S. 370

owner's property, protection of the police from subsequentclaims of loss or stolen property, and the protection of the policefrom dangerous instrumentalities."

App. 81-83. The court observed that the standard procedures forimpounding vehicles mandated a "detailed inventory involving theopening of containers and the listing of [their] contents."Id. at 81. Based on these findings, the court determinedthat the inventory search did not violate Bertine's rights underthe Fourth Amendment of the United States Constitution.Id. at 83. The court, nevertheless, granted Bertine'smotion to suppress, holding that the inventory search violated theColorado Constitution.

On the State's interlocutory appeal, the Supreme Court ofColorado affirmed.706 P.2d411 (1986). In contrast to the District Court, however, theColorado Supreme Court premised its ruling on the United StatesConstitution. The court recognized that, inSouth Dakota v.Opperman,428 U. S. 364(1976), we had held inventory searches of automobiles to beconsistent with the Fourth Amendment, and that, inIllinois v.Lafayette,462 U. S. 640(1983), we had held that the inventory search of personal effectsof an arrestee at a police station was also permissible under thatAmendment. The Supreme Court of Colorado felt, however, that ourdecisions inArkansas v. Sanders,442 U.S. 753 (1979), andUnited States v. Chadwick,433 U. S. 1 (1977),holding searches of closed trunks and suitcases to violate theFourth Amendment, meant thatOpperman andLafayette did not govern this case. [Footnote 2]

We granted certiorari to consider the important and recurringquestion of federal law decided by the Colorado Supreme

Page 479 U. S. 371

Court. [Footnote 3] 475 U.S.1081 (1986). As that court recognized, inventory searches are now awell defined exception to the warrant requirement of the FourthAmendment.See Lafayette, supra, at462 U. S. 643;Opperman, supra, at428 U. S.367-376. The policies behind the warrant requirement arenot implicated in an inventory search,Opperman, 428 U.S.at428 U. S. 370,n. 5, nor is the related concept of probable cause:

"The standard of probable cause is peculiarly related tocriminal investigations, not routine, noncriminal procedures. . . .The probable cause approach is unhelpful when analysis centers uponthe reasonableness of routine administrative caretaking functions,particularly when no claim is made that the protective proceduresare a subterfuge for criminal investigations."

Ibid.See also United States v. Chadwick,supra, at433 U. S. 10, n.5. For these reasons, the Colorado Supreme Court's reliance onArkansas v. Sanders, supra, andUnited States v.Chadwick, supra, was incorrect. Both of these cases concernedsearches solely for the purpose of investigating criminal conduct,with the validity of the searches therefore dependent on theapplication of the probable cause and warrant requirements of theFourth Amendment.

By contrast, an inventory search may be "reasonable" under theFourth Amendment even though it is not conducted pursuant to awarrant based upon probable cause. In

Page 479 U. S. 372

Opperman, this Court assessed the reasonableness of aninventory search of the glove compartment in an abandonedautomobile impounded by the police. We found that inventoryprocedures serve to protect an owner's property while it is in thecustody of the police, to insure against claims of lost, stolen, orvandalized property, and to guard the police from danger. In lightof these strong governmental interests and the diminishedexpectation of privacy in an automobile, we upheld the search. Inreaching this decision, we observed that our cases accordeddeference to police caretaking procedures designed to secure andprotect vehicles and their contents within police custody.SeeCooper v. California,386 U. S. 58,386 U. S. 61-62(1967);Harris v. United States,390 U.S. 234,390 U. S. 236(1968);Cady v. Dombrowski,413 U.S. 433,413 U. S.447-448 (1973). [Footnote 4]

In our more recent decision,Lafayette, a policeofficer conducted an inventory search of the contents of a shoulderbag in the possession of an individual being taken into custody. Indeciding whether this search was reasonable, we recognized that thesearch served legitimate governmental interests similar to thoseidentified inOpperman. We determined that those interestsoutweighed the individual's Fourth Amendment interests, and upheldthe search.

In the present case, as inOpperman andLafayette, there was no showing that the police, who werefollowing standardized procedures, acted in bad faith or for thesole purpose of investigation. In addition, the governmentalinterests justifying the inventory searches inOppermanandLafayette are

Page 479 U. S. 373

nearly the same as those which obtain here. In each case, thepolice were potentially responsible for the property taken intotheir custody. By securing the property, the police protected theproperty from unauthorized interference. Knowledge of the precisenature of the property helped guard against claims of theft,vandalism, or negligence. Such knowledge also helped to avert anydanger to police or others that may have been posed by theproperty. [Footnote 5]

The Supreme Court of Colorado opined thatLafayette wasnot controlling here because there was no danger of introducingcontraband or weapons into a jail facility. Our opinion inLafayette, however, did not suggest that the station-housesetting of the inventory search was critical to our holding in thatcase. Both in the present case and inLafayette, thecommon governmental interests described above were served by theinventory searches.

The Supreme Court of Colorado also expressed the view that thesearch in this case was unreasonable because Bertine's van wastowed to a secure, lighted facility, and because Bertine himselfcould have been offered the opportunity to make other arrangementsfor the safekeeping of his property. But the security of thestorage facility does not completely eliminate the need forinventorying; the police may still wish to protect themselves orthe owners of the lot against false claims of theft or dangerousinstrumentalities. And while giving Bertine an opportunity to makealternative

Page 479 U. S. 374

arrangements would undoubtedly have been possible, we said inLafayette:

"[T]he real question is not what 'could have been achieved,' butwhether the Fourth Amendmentrequires such steps. . .."

"The reasonableness of any particular governmental activity doesnot necessarily or invariably turn on the existence of alternative'less intrusive' means."

Lafayette, 462 U.S. at462 U. S. 647(emphasis in original).See Cady v. Dombrowski, supra, at413 U. S. 447;United States v. Martinez-Fuerte,428 U.S. 543,428 U. S. 557,n. 12 (1976). We conclude that here, as inLafayette,reasonable police regulations relating to inventory procedures,administered in good faith, satisfy the Fourth Amendment, eventhough courts might, as a matter of hindsight, be able to deviseequally reasonable rules requiring a different procedure. [Footnote 6]

The Supreme Court of Colorado also thought it necessary torequire that police, before inventorying a container, weigh thestrength of the individual's privacy interest in the containeragainst the possibility that the container might serve as arepository for dangerous or valuable items. We think that such arequirement is contrary to our decisions in

Page 479 U. S. 375

Opperman andLafayette, and by analogy to ourdecision inUnited States v. Ross,456 U.S. 798 (1982):

"Even if less intrusive means existed of protecting someparticular types of property, it would be unreasonable to expectpolice officers in the everyday course of business to make fine andsubtle distinctions in deciding which containers or items may besearched and which must be sealed as a unit."

Lafayette, supra, at462 U. S.648.

"When a legitimate search is under way, and when its purpose andits limits have been precisely defined, nice distinctions betweenclosets, drawers, and containers, in the case of a home, or betweenglove compartments, upholstered seats, trunks, and wrappedpackages, in the case of a vehicle, must give way to the interestin the prompt and efficient completion of the task at hand."

United States v. Ross, supra, at456 U. S.821.

We reaffirm these principles here:

"'[a] single familiar standard is essential to guide policeofficers, who have only limited time and expertise to reflect onand balance the social and individual interests involved in thespecific circumstances they confront.'"

Lafayette, supra, at462 U. S. 648(quotingNew York v. Belton,453 U.S. 454,453 U. S. 458(1981)).

Bertine finally argues that the inventory search of his van wasunconstitutional because departmental regulations gave the policeofficers discretion to choose between impounding his van andparking and locking it in a public parking place. The Supreme Courtof Colorado did not rely on this argument in reaching itsconclusion, and we reject it. Nothing inOpperman orLafayette prohibits the exercise of police discretion, solong as that discretion is exercised according to standard criteriaand on the basis of something other than suspicion of evidence ofcriminal activity. Here, the discretion afforded the Boulder policewas exercised in light of

Page 479 U. S. 376

standardized criteria, related to the feasibility andappropriateness of parking and locking a vehicle rather thanimpounding it. [Footnote 7]There was no showing that the police chose to impound Bertine's vanin order to investigate suspected criminal activity.

While bothOpperman andLafayette aredistinguishable from the present case on their facts, we think thatthe principles enunciated in those cases govern the present one.The judgment of the Supreme Court of Colorado is therefore

Reversed.

[Footnote 1]

Section 7-7-2(a)(4) of the Boulder Revised Code authorizespolice officers to impound vehicles when drivers are taken intocustody. Section 7-7-2(a)(4) provides:

"A peace officer is authorized to remove or cause to be removeda vehicle from any street, parking lot, or driveway when:"

"(4) The driver of a vehicle is taken into custody by the policedepartment."

Boulder Rev. Code § 7-7-2(a)(4)(1981).

[Footnote 2]

Two justices dissented from the majority opinion, arguing thatSouth Dakota v. Opperman andIllinois v.Lafayette compel the conclusion that the inventory search ofthe backpack found in Bertine's van was permissible under theFourth Amendment.

[Footnote 3]

Since our decision inSouth Dakota v. Opperman, severalcourts have confronted the issue whether police may inventory thecontents of containers found in vehicles taken into police custody.See, e.g., United States v. Griffin, 729 F.2d 475 (CA7)(upholding inventory search of package found in paper bag),cert. denied, 469 U.S. 830 (1984);United States v.Bloomfield, 594 F.2d 1200 (CA8 1979) (affirming suppression ofevidence found in closed knapsack);People v. Braasch, 122Ill.App. 3d 747, 461 N.E.2d 651 (1984) (upholding inventory ofpaper bag);People v. Gonzalez, 62 N.Y.2d 386, 465 N.E.2d823 (1984) (upholding inventory of paper bag);Boggs v.Commonwealth, 229 Va. 501,331 S.E.2d407 (1985) (upholding inventory of boxes and pouch found inbag),cert. denied, 475 U.S. 1031 (1986).

[Footnote 4]

The Colorado Supreme Court correctly stated thatOpperman did not address the question whether the scope ofan inventory search may extend to closed containers located in theinterior of an impounded vehicle. We did note, however, that

"'when the police take custody of any sort of container [suchas] an automobile . . . it is reasonable to search the container toitemize the property to be held by the police.'"

428 U.S. at428 U. S. 371(quotingUnited States v. Gravitt, 484 F.2d 375, 378 (CA51973),cert. denied, 414 U.S. 1135 (1974)).

[Footnote 5]

In arguing that the latter two interests are not implicatedhere, the dissent overlooks the testimony of the backup officer whoconducted the inventory of Bertine's van. According to the officer,the vehicle inventory procedures of the Boulder Police Departmentare designed for the "[p]rotection of the police department" in theevent that an individual later claims that "there was something ofvalue taken from within the vehicle." 2 Tr. 19. The officer addedthat inventories are also conducted in order to check "[f]or anydangerous items such as explosives [or] weapons."Id. at20. The officer testified that he had found such items invehicles.

[Footnote 6]

We emphasize that, in this case, the trial court found that thePolice Department's procedures mandated the opening of closedcontainers and the listing of their contents. Our decisions havealways adhered to the requirement that inventories be conductedaccording to standardized criteria.See Lafayette, 462U.S. at462 U. S. 648;Opperman, 428 U.S. at428 U. S.374-375.

By quoting a portion of the Colorado Supreme Court's decisionout of context, the dissent suggests that the inventory here wasnot authorized by the standard procedures of the Boulder PoliceDepartment.See post at479 U. S.380-381. Yet that court specifically stated that theprocedure followed here was "officially authorized."706 P.2d411, 413, n. 2 (1985). In addition, the court did not disturbthe trial court's finding that the police procedures for impoundingvehicles required a detailed inventory of Bertine's van.Seeid. at 418-419.

[Footnote 7]

In arguing that the Boulder Police Department procedures setforth no standardized criteria guiding an officer's decision toimpound a vehicle, the dissent selectively quotes from the policedirective concerning the care and security of vehicles taken intopolice custody. The dissent fails to mention that the directiveestablishes several conditions that must be met before an officermay pursue the park-and-lock alternative. For example, police maynot park and lock the vehicle where there is reasonable risk ofdamage or vandalism to the vehicle or where the approval of thearrestee cannot be obtained. App. 91-92, 94-95. Not only do suchconditions circumscribe the discretion of individual officers, butthey also protect the vehicle and its contents and minimize claimsof property loss.

JUSTICE BLACKMUN, with whom JUSTICE POWELL and JUSTICE O'CONNORjoin, concurring.

The Court today holds that police officers may open closedcontainers while conducting a routine inventory search of animpounded vehicle. I join the Court's opinion, but write separatelyto underscore the importance of having such inventories conductedonly pursuant to standardized police procedures. The underlyingrationale for allowing an inventory exception to the FourthAmendment warrant rule is that police officers are not vested withdiscretion to determine the scope of the inventory search.SeeSouth Dakota v. Opperman,428 U. S. 364,428 U. S.382-383 (1976) (POWELL, J., concurring). This absence ofdiscretion ensures that inventory searches will not be used as apurposeful and general means of discovering evidence of crime.Thus, it is permissible

Page 479 U. S. 377

for police officers to open closed containers in an inventorysearch only if they are following standard police procedures thatmandate the opening of such containers in every impounded vehicle.As the Court emphasizes, the trial court in this case found thatthe Police Department's standard procedures did mandate the openingof closed containers and the listing of their contents.Seeante at479 U. S. 374,n. 6.

JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins,dissenting.

Recognizing that "bothOpperman andLafayetteare distinguishable from the present case on their facts,"ante at479 U. S. ,the majority applies the balancing test enunciated in those casesto uphold as reasonable the inventory of a closed container in acar impounded when its driver was placed under arrest. However, thedistinctive facts of this case require a different result. Thissearch -- it cannot legitimately be labeled an inventory -- wasunreasonable and violated the Fourth Amendment. Unlike theinventories inSouth Dakota v. Opperman,428 U.S. 364 (1976), andIllinois v. Lafayette,462 U. S. 640(1983), it was not conducted according to standardized procedures.Furthermore, the governmental interests justifying the intrusionare significantly weaker than the interests identified in eitherOpperman orLafayette, and the expectation ofprivacy is considerably stronger.

IAs the Court acknowledges,ante at479 U. S. 374,and n. 6, and479 U. S.375-376, inventory searches are reasonable only ifconducted according to standardized procedures. In bothOpperman andLafayette, the Court relied on theabsence of police discretion in determining that the inventorysearches in question were reasonable. Chief Justice Burger'sopinion inOpperman repeatedly referred to thisstandardized nature of inventory procedures.See 428 U.S.at428 U. S. 369,428 U. S. 372,428 U. S. 376.JUSTICE POWELL'S concurring opinion in that case also

Page 479 U. S. 378

stressed that

"no significant discretion is placed in the hands of theindividual officer: he usually has no choice as to the subject ofthe search or its scope."

Id. at428 U. S. 384(footnote omitted). Similarly, the Court inLafayetteemphasized the standardized procedure under which the station-houseinventory was conducted.See 462 U.S. at462 U. S. 646,462 U. S. 647,462 U. S. 648;see also id. at462 U. S. 649(MARSHALL, J., concurring in judgment). In assessing thereasonableness of searches conducted in limited situations such asthese, where we do not require probable cause or a warrant, we haveconsistently emphasized the need for such set procedures:

"standardless and unconstrained discretion is the evil the Courthas discerned when, in previous cases, it has insisted that thediscretion of the official in the field be circumscribed, at leastto some extent."

Delaware v. Prouse,440 U. S. 648,440 U. S. 661(1979).See Almeida-Sanchez v. United States,413 U.S. 266,413 U. S. 270(1973);Cady v. Dombrowski,413 U.S. 433,413 U. S. 443(1973);Harris v. United States,390 U.S. 234,390 U. S. 235(1968);Camara v. Municipal Court,387 U.S. 523,387 U. S.532-533 (1967).

The Court today attempts to evade these clear prohibitions onunfettered police discretion by declaring that

"the discretion afforded the Boulder police was exercised inlight of standardized criteria, related to the feasibility andappropriateness of parking and locking a vehicle rather thanimpounding it."

Ante at479 U. S.375-376. This vital assertion is flatly contradicted bythe record in this case. The officer who conducted the inventory,Officer Reichenbach, testified at the suppression hearing that thedecision not to "park and lock" respondent's vehicle was his "ownindividual discretionary decision." Tr. 76. Indeed, application ofthese supposedly standardized "criteria" upon which the Court soheavily relies would have yielded a different result in this case.Since there was ample public parking adjacent to the intersectionwhere respondent was stopped, consideration of "feasibility" wouldcertainly have militated in favor of the "park and lock"

Page 479 U. S. 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 particularlyappropriate in this case, where respondent was stopped for atraffic offense and was not likely to be in custody for asignificant length of time.

Indeed, the record indicates that no standardized criteria limita Boulder police officer's discretion. According to a departmentaldirective, [Footnote 2/1] afterplacing a driver under arrest, an officer has three options fordisposing of the vehicle. First, he can allow a third party to takecustody. [Footnote 2/2] Second, theofficer or the driver (depending on the nature of the arrest) maytake the car to the nearest public parking facility, lock it, andtake the keys. [Footnote 2/3]Finally, the officer can do what was done in

Page 479 U. S. 380

this case: impound the vehicle, and search and inventory itscontents, including closed containers. [Footnote 2/4]

Under the first option, the police have no occasion to searchthe automobile. Under the "park and lock" option,

"[c]losed containers that give no indication of containingeither valuables or a weaponmay not be opened and the contentssearched (i.e., inventoried)."

App. 92-93 (emphasis added). Only if the police choose the thirdoption are they entitled to search closed containers in thevehicle. Where the vehicle is not itself evidence of a crime,[Footnote 2/5] as in this case, thepolice apparently have totally unbridled discretion as to whichprocedure to use.See 706 P.2d411, 413, n. 3 (Colo. 1985) ("[T]he Boulder Police Department'sregulations and rules do not require that an automobile beinventoried and searched in accordance with the procedures followedin this

Page 479 U. S. 381

case"). Consistent with this conclusion, Officer Reichenbachtestified that such decisions were left to the discretion of theofficer on the scene. App. 60.

Once a Boulder police officer has made this initial completelydiscretionary decision to impound a vehicle, he is given littleguidance as to which areas to search and what sort of items toinventory. The arresting officer, Officer Toporek, testified at thesuppression hearing as to what items would be inventoried:

"That would I think be very individualistic as far as what anofficer may or may not go into. I think whatever arouses hissuspicious [sic] as far as what may be contained in anytype of article in the car."

Id. at 78. In application, these so-called proceduresleft the breadth of the "inventory" to the whim of the individualofficer. Clearly, "[t]he practical effect of this system is toleave the [owner] subject to the discretion of the official in thefield."Camara v. Municipal Court, 387 U.S. at387 U. S.532.

Inventory searches are not subject to the warrant requirementbecause they are conducted by the government as part of a"community caretaking" function, "totally divorced from thedetection, investigation, or acquisition of evidence relating tothe violation of a criminal statute."Cady v. Dombrowski,413 U.S. at413 U. S. 441.Standardized procedures are necessary to ensure that this narrowexception is not improperly used to justify, after the fact, awarrantless investigative foray. Accordingly, to invalidate asearch that is conducted without established procedures, it is notnecessary to establish that the police actually acted in bad faith,or that the inventory was in fact a "pretext." By allowing thepolice unfettered discretion, Boulder's discretionary scheme, likethe random spot checks inDelaware v. Prouse, isunreasonable because of the "grave danger' of abuse ofdiscretion." 440 U.S. at440 U. S.662.

IIInSouth Dakota v. Opperman,428 U.S. 364 (1976), andIllinois v. Lafayette,462 U. S. 640(1983), both of which

Page 479 U. S. 382

involved inventories conducted pursuant to standardizedprocedures, we balanced the individual's expectation of privacyagainst the government's interests to determine whether the searchwas reasonable. Even if the search in this case did constitute alegitimate inventory, it would nonetheless be unreasonable underthis analysis.

A

The Court greatly overstates the justifications for theinventory exception to the Fourth Amendment. Chief Justice Burger,writing for the majority inOpperman, relied on threegovernmental interests to justify the inventory search of anunlocked glove compartment in an automobile impounded for overtimeparking: (i) "the protection of the owner's property while itremains in police custody"; (ii) "the protection of the policeagainst claims or disputes over lost or stolen property"; and (iii)"the protection of the police from potential danger." 428 U.S. at428 U. S. 369.The majority finds that "nearly the same" interests obtain in thiscase.See ante at479 U. S. 373. As JUSTICE POWELL's concurring opinion inOpperman reveals, however, only the first of theseinterests is actually served by an automobile inventory search.

The protection-against-claims interest did not justify theinventory search either inOpperman, see 428 U.S. at428 U. S. 378,n. 3 (POWELL, J., concurring), or in this case. As the majorityapparently concedes,ante at479 U. S. 373,the use of secure impoundment facilities effectively eliminatesthis concern. [Footnote 2/6] As

Page 479 U. S. 383

to false claims,

"inventories are [not] a completely effective means ofdiscouraging false claims, since there remains the possibility ofaccompanying such claims with an assertion that an item was stolenprior to the inventory or was intentionally omitted from the policerecords."

428 U.S. at428 U. S.378-379 (POWELL, J., concurring).See also id.at428 U. S. 391,and nn. 9 and 10 (MARSHALL, J., dissenting); 2 W. LaFave, Searchand Seizure § 5.5, p. 360, n. 50 (1978 and Supp. 1986).

Officer Reichenbach's inventory in this case would not haveprotected the police against claims lodged by respondent, false orotherwise. Indeed, the trial court's characterization of theinventory as "slipshod" is the height of understatement. Forexample, Officer Reichenbach failed to list $150 in cash found inrespondent'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 ofvalue, including respondent's credit cards, and a converter, ahydraulic 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 formcompleted later by someone other than Officer Reichenbach.Id. at 81-82. The interior of the vehicle was left indisarray,id. at 99, and the officer "inadvertently"retained respondent's keys -- including his house keys -- for twodays following his arrest.Id. at 116, 133-134.

The third interest -- protecting the police from potentialdanger -- failed to receive the endorsement of a majority of theCourt inOPperman. After noting that "there is littledanger associated with impounding unsearched vehicles," JUSTICEPOWELL recognized that

"there does not appear to be any effective way of identifying inadvance those circumstances or classes of automobile impoundmentswhich represent a greater risk."

428 U.S. at428 U. S. 378.See also id. at428 U. S. 390(MARSHALL, J., dissenting) (safety rationale "cannot justify thesearch of every car upon the basis of undifferentiatedpossibility

Page 479 U. S. 384

of harm"). As with the charge of overtime parking inOpperman, there is nothing in the nature of the offensefor which respondent was arrested that suggests he was likely to becarrying weapons, explosives, or other dangerous items.Cf.Cady v. Dombrowski, 413 U.S. at413 U. S.436-437 (police reasonably believed that the defendant'sservice revolver was in the car). Not only is protecting the policefrom dangerous instrumentalities an attenuated justification formost automobile inventory searches, but opening closed containersto inventory the contents can only increase the risk. In the wordsof the District Court inUnited States v.Cooper, 428 F.Supp. 652, 654-655 (SD Ohio 1977):

"The argument that the search was necessary to avoid a possibleboobytrap is . . . easily refuted. No sane individual inspects forboobytraps by simply opening the container."

Thus, only the government's interest in protecting the owner'sproperty actually justifies an inventory search of an impoundedvehicle.See 428 U.S. at428 U. S. 379(POWELL, J., concurring);id. at428 U. S. 391(MARSHALL, J., dissenting). While I continue to believe thatpreservation of property does not outweigh the privacy and securityinterests protected by the Fourth Amendment, I fail to see howpreservation can even be asserted as a justification for the searchin this case. InOpperman, the owner of the impounded carwas not available to safeguard his possessions,see id. at428 U. S. 375,and it could plausibly be argued that, in his absence, the policewere entitled to act for his presumed benefit.See also Cady v.Dombrowski, supra, at413 U. S. 436 (comatose defendant). When the policeconducted the inventory inOpperman, they could notpredict how long the car would be left in their possession.See 428 U.S. at428 U. S. 379(POWELL, J., concurring) ("[M]any owners might leave valuables intheir automobiles temporarily that they would not leave thereunattended for the several days that police custody may last");cf. Cooper v. California,386 U. S.58,386 U. S. 61(1967) (police retained car for four months pending forfeiture;length of time considered by the Court in assessing

Page 479 U. S. 385

reasonableness of inventory). In this case, however, the ownerwas "present to make other arrangements for the safekeeping of hisbelongings,"Opperman, 428 U.S. at428 U. S. 375,yet the police made no attempt to ascertain whether in fact hewanted them to "safeguard" his property. Furthermore, sincerespondent was charged with a traffic offense, he was unlikely toremain in custody for more than a few hours. He might well havebeen willing to leave his valuables unattended in the locked vanfor such a short period of time.See Tr. 110 (had he beengiven the choice, respondent indicated at the suppression hearingthat 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 inOpperman, but the search here is much more intrusive.Opperman did not involve a search of closed containers orother items that "touch upon intimate areas of an individual'spersonal affairs,'" 428 U.S. at428 U. S. 380,and n. 7 (POWELL, J., concurring) (quotingCalifornia BankersAssn. v. Shultz,416 U. S. 21,416 U. S. 78-79(1974) (POWELL, J., concurring)); nor can the Court's opinion beread to authorize the inspection of "containers which mightthemselves be sealed, removed and secured without furtherintrusion." 428 U.S. at428 U. S. 388,n. 6 (MARSHALL, J., dissenting). To expand theOppermanrationale to include containers in which the owner clearly has areasonable expectation of privacy, the Court relies onIllinoisv. Lafayette,462 U. S. 640(1983). Such reliance is fundamentally misplaced, however; theinventory inLafayette was justified by considerationswhich are totally absent in this context.

InLafayette, we upheld a station-house inventorysearch of an arrestee's shoulder bag. Notwithstanding the Court'sassertions to the contrary,ante at479 U. S. 373,the inventory in that case was justified primarily by compellinggovernmental interests unique to the station house,preincarceration context. There is a powerful interest inpreventing the introduction

Page 479 U. S. 386

of contraband or weapons into a jail. [Footnote 2/7]

"Arrested persons have also been known to injure themselves --or others -- with belts, knives, drugs, or other items on theirperson while being detained. Dangerous instrumentalities -- such asrazor blades, bombs, or weapons -- can be concealed ininnocent-looking articles taken from the arrestee'spossession."

462 U.S. at462 U. S. 646.Removing such items from persons about to be incarcerated isnecessary to reasonable jail security; once these items have beenidentified and removed, "inventorying them is an entirelyreasonable administrative procedure."Ibid. AlthoughLafayette also involved the property justifications reliedon inOpperman, I do not believe it can fairly be read toexpand the scope of inventory searches where the pressing securityconcerns of the station house are absent.

B

Not only are the government's interests weaker here than inOpperman andLafayette, but respondent's privacyinterest is greater. In upholding the search inOpperman,the Court emphasized the fact that the defendant had a diminishedexpectation of privacy in his automobile, due to "pervasive andcontinuing governmental regulation and controls, including periodicinspection and licensing requirements" and "the obviously publicnature of automobile travel." 428 U.S. at428 U. S. 368.See also id. at428 U. S. 379(POWELL, J., concurring);but see id. at428 U. S.386-388 (MARSHALL, J., dissenting). Similarly, inLafayette, the Court emphasized the

Page 479 U. S. 387

fact that the defendant was in custody at the time the inventorytook place. 462 U.S. at462 U. S.645-646.

Here the Court completely ignores respondent's expectation ofprivacy in his backpack. Whatever his expectation of privacy in hisautomobile generally, our prior decisions clearly establish that heretained a reasonable expectation of privacy in the backpack andits contents.See Arkansas v. Sanders,442 U.S. 753,442 U. S. 762(1979) ("[L]uggage is a common repository for one's personaleffects, and therefore is inevitably associated with theexpectation of privacy");United States v. Chadwick,433 U. S. 1,433 U. S. 13(1977) ("[A] person's expectations of privacy in personal luggageare substantially greater than in an automobile"). Indeed, theBoulder police officer who conducted the inventory acknowledgedthat backpacks commonly serve as repositories for personal effects.[Footnote 2/8] Thus, even if thegovernmental interests in this case were the same as those inOpperman, they would nonetheless be outweighed byrespondent's comparatively greater expectation of privacy in hisluggage.

IIIInCoolidge v. New Hampshire,403 U.S. 443,403 U. S.461-462 (1971), a plurality of this Court stated: "Thewordautomobile' is not a talisman in whose presence the FourthAmendment fades away and disappears." By upholding the search inthis case, the Court not only ignores that principle, but createsanother talisman to overcome the requirements of the FourthAmendment -- the term "inventory." Accordingly, I dissent.

[Footnote 2/1]

Subsections 7-7-2(a)(1) and 7-7-2(a)(g) of the Boulder RevisedCode authorize police to impound a vehicle if the driver is takeninto custody or if the vehicle obstructs traffic. A departmentaldirective authorizes inventory searches of impounded vehicles.See General Procedure issued from the office of the Chiefof Police, Boulder Police Department, concerning Motor VehicleImpounds, effective September 7, 1977, reproduced in App.89-95.

[Footnote 2/2]

See id. at 95.

[Footnote 2/3]

If the vehicle and its contents are not evidence of a crime andthe owner consents, § III of the General Procedure provides, inrelevant part:

"A. Upon placing the operator of a motor vehicle in custody,Officersmay take the following steps in securing thearrestee's vehicle and property. . . :"

"* * * *"

"4. The Officer shall drive the vehicle off the roadway andlegally park the vehicle in the nearest PUBLIC parking area. Thedate, time, and location where the vehicle is parked shall beindicated on the IMPOUND FORM."

"5. The Officer shall remove the ignition keys, and lock alldoors of the vehicle."

"6. During the booking process, the arrestee shall be given acontinuation form for his signature which indicates the location ofhis vehicle. One copy of the continuation form is to be retained inthe case file."

Id. at 93-94 (emphasis added).

[Footnote 2/4]

Section II(A) of the General Procedure establishes the followingimpoundment procedures:

"1. If the vehicle or its contents have been used in thecommission of a crime or are themselves the fruit of a crime, theOfficer shall conduct a detailed vehicle inspection and inventoryand record it upon the VEHICLE IMPOUND FORM."

"2. Personal items of value should be removed from the vehicleand subsequently placed into Property for safekeeping."

"3. The Officer shall request a Tow Truck, and upon its arrivalhave the Tow Truck operator sign the IMPOUND FORM, keeping one copyin his possession, before the Officer releases the vehicle forimpoundment in the City of Boulder impoundment facility."

Id. at 90-91. Subsection (B) of the directive providesthat this procedure is also to be followed when a vehicle involvedin a traffic accident is to be held for evidentiary purposes.

[Footnote 2/5]

Respondent's van was not evidence of a crime within the meaningof the departmental directive; Officer Reichenbach testified thatit was not his practice to impound all cars following an arrest fordriving while under the influence of alcohol. Tr. 61. TheMemorandum also requires the "approval of the arrestee" before thepolice can "park and lock" his car, App. 92. In this case, however,respondent was never advised of this option, and had no opportunityto consent. At the suppression hearing, he indicated that he wouldhave consented to such a procedure.See Tr. 110.

[Footnote 2/6]

The impoundment lot inSouth Dakota v. Opperman was"the old county highway yard. It ha[d] a wooden fence partiallyaround part of it, and kind of a dilapidated wire fence, amakeshift fence." 428 U.S. at428 U. S. 366,n. 1.See also Cady v. Dombrowski,413 U.S. 433,413 U. S. 443(1973) ("[T]he car was left outside, in a lot seven miles from thepolice station to which respondent had been taken, and no guard wasposted over it"). By contrast, in the present case, respondent'svehicle was taken to a lighted, private storage lot with a locked6-foot fence. The lot was patrolled by private security officersand police, and nothing had ever been stolen from a vehicle in thelot. App. 69-71.

[Footnote 2/7]

The importance of this justification to the outcome inIllinois v. Lafayette is amply demonstrated by the Court'sdirection on remand:

"The record is unclear as to whether respondent was to have beenincarcerated after being booked for disturbing the peace. That isan appropriate inquiry on remand."

462 U.S. at462 U. S. 648,n. 3.See also id. at462 U. S. 649(MARSHALL, J., concurring in judgment) ("I agree that the police donot need a warrant or probable cause to conduct an inventory searchprior to incarcerating a suspect" (emphasis added));see also United States v. Robinson,414 U.S. 218,414 U. S. 258,n. 7 (1973) (MARSHALL, J., dissenting) (the justification forstation-house searches is "the fact that the suspect will be placedin jail").

[Footnote 2/8]

At the suppression hearing, Officer Reichenbach stated: "Theaverage person on the street . . . carries items of personal valuein the backpacks, wallets, checkbooks, textbooks." Tr. 23.