Following a bench trial, Omar Capellán was convicted of trafficking in marijuana, possession of marijuana with intent to distribute, and giving a false name and date of birth. The trial court denied Capellan’s motion for new trial, and he appeals, seeking review of the trial court’s denial of his motion to suppress. For the following reasons, we reverse.
“On appeal, we accept the trial court’s findings on disputed facts and credibility issues unless clearly erroneous. However, where controlling facts are not in dispute, such as those facts discernible from a videotape, our review is de novo.” (Citations and punctuation omitted.) Boyd v. State,
The facts here are undisputed. The record reveals that an officer patrolling on Interstate 85 noticed a flatbed wrecker carrying a van run onto the shoulder of the road “across the fog line approximately three times.” The officer also noticed that the wrecker’s New Jersey license plate was illegible because of “grease or dirt or some kind of black smudges all over the tag.”
The officer stopped the wrecker and asked the driver, Capellán, for his driver’s license. When Capellán stated that he did not have his driver’s license, the officer asked him for his name and date of birth. Capellán told the officer “that he was 26 years old and born in 1974,” and that his name was “Sammy Ba[d]away.” The officer testified that
When the first officer went into the cabin of the wrecker to look for Capellan’s license, he smelled “a fairly strong odor of raw or green marijuana.” This officer testified that he was trained in marijuana recognition. The officer did not “locate any marijuana,” but did locate a valid Florida driver’s license and a suspended New Jersey driver’s license, showing Capellan’s real name and date of birth.
The officer testified and the video recording reveals that after Capellán was secured in the back of the police vehicle, he began “inventorying” the wrecker and the van. The officer retrieved the keyless entry for the van from the key ring in the ignition of the wrecker, unlocked it, and opened the cargo area of the van. In the back of the van, the officer found two large duffel bags containing clear plastic bags of “a green leafy substance [the officer] suspected to be marijuana.” Apolice department evidence technician who qualified at the bench trial as an expert in the analysis of narcotics determined that the duffel bags found in the van contained approximately 29 pounds of marijuana. Following the hearing on the motion to suppress, the trial court denied Capellan’s motion concluding that the case “presents a strong case for impoundment and inevitable discovery.”
On appeal, Capellán argues that the trial court erred in denying his motion to suppress because the State failed to show that the searches of the locked van and the duffel bags were lawful. Specifically, he argues that there was no evidence of a police department policy with respect to the opening of closed containers — here the locked van and duffel bags — encountered during the inventory search and no other exceptions to the warrant requirement exist. The State, on the other hand, asserts that the police conduct in having a lawful basis for impounding the wrecker (and the van it was carrying) was reasonable and that the marijuana in the van would have been
The first step in our analysis requires us to determine whether the “impoundment was reasonably necessary under the circumstances.” Grizzle v. State,
Having determined that impoundment of the vehicle was reasonably necessary, we must now determine whether the officer’s search of the van, following Capellan’s arrest, was a valid inventory search.
The United States Supreme Court has held that 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 this respect, an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence, but instead the policy or practice governing inventory searches should be designed to*470 produce an inventory. Pursuant to these principles, . . . the first purpose of an inventory search is the protection of the owner’s property while it remains in police custody and the second purpose is the protection of the police against claims or disputes over lost or stolen property. And . . . this Court recognized that taking an inventory of the contents in a closed container in the trunk of a vehicle serves both of these purposes.
(Citations and punctuation omitted.) Grizzle, supra,
In this case, Capellán argues that the inventory search of the locked van and the duffel bags inside it was not proper in the absence of evidence of the police department’s policy on inventory searches. The record contains no evidence about the police department’s policy or procedures on inventory searches. Rather, both officers simply testified that their searches of the wrecker, van, and its contents were inventory searches pursuant to the impoundment. The police department may well have had such a reasonable inventory procedure. However, there is no evidence in the record to establish the existence of such a policy or procedure. Without evidence of such policy it is difficult, if not impossible, to conclude that the inventory was conducted pursuant to such policy and not simply a “rummaging” to discover incriminating evidence. The inventory search here was therefore unreasonable under the Fourth Amendment. See Wells, supra; compare Grizzle, supra,
The State asserts that we should nonetheless uphold the search under the doctrine of inevitable discovery. This assertion also fails, however, based upon the lack of evidence about the police department’s inventory policy. Clay, supra,
Because the inventory search here was unreasonable because of a lack of evidence of police policy, the trial court erred in denying Capellan’s motion to suppress. We are therefore constrained to reverse.
Judgment reversed.
Notes
Before his arrest, Capellán told officers that he was coming from Loganville, Georgia, was headed to Virginia, and that he had picked up the van on the back of the wrecker from Clearwater, Florida. But after he was arrested and placed in the back of the police vehicle, Capellán told officers that he picked up the van in Loganville.
We note that our courts have held that an inventory may be conducted at the scene of arrest or at the police station. See Carson v. State,