This is a death penalty case. On March 26, 1986, Fred and Evelyn Blackmon were *1277
robbed, kidnapped, and murdered. Petitioner William Glen Boyd was convicted of committing these crimes and was sentenced to death by electrocution. The Court of Criminal Appeals affirmed.Boyd v. State,
On the morning of the crime, Boyd and Robert Milstead1 parked Boyd's Chevrolet Camaro automobile about a quarter mile from the victims' home. The robbery and kidnaping began at the Blackmons' home and continued in the Blackmons' Cadillac Eldorado automobile; the murder site was a secluded area on the Coosa River near Ohatchee.
Sergeant Hall of the Anniston Police Department testified that on April 3, 1986, as Boyd exited from his Camaro, which was parked on the street in front of his house, he was arrested and charged with kidnaping the Blackmons. Another officer took Boyd into custody, and Sergeant Hall impounded the Camaro and drove it to the city impound lot behind the police station.2 Later that afternoon, Boyd gave a statement, amounting to a confession, to Lieutenant Carroll. During the course of that statement, at which only Lieutenant Carroll was present, Boyd said that the clothes worn by him and Milstead on the date of the crimes were on thе seat of the Camaro.
Officer Bradley and Sergeant Watson testified that they inventoried the Camaro on April 7, 1986, four days after the arrest and impoundment. Bradley testified that "[i]t was an inventory by request of Lieutenant Carroll." Bradley further testified that the detective bureau had asked that the Camaro be inventoried and that evidence found pursuant to the inventory be gathered. Sergeant Watson confirmed that the purpose for entering the Camaro was "[t]o conduct an inventory search of the vehicle." Lieutenant Carroll furnished the key to the Camaro to Sergeant Watson. Carroll had received the key from the arresting officer, who had kept it with him for "three or four days" after the arrest.
Sergeant Watson agreed that the inventory was conducted in "compliance with the policies of the police department." Boyd objected to any further testimony concerning the inventory or its fruits unless proof was made as to what the policies or procedures were; his objection was overruled. During Sergeant Watson's cross-examination, the following exchange occurred:
"Q. Let's go back to what you've referred to as an inventory search of a vehicle.
"Would you please tell this Court and this jury what the policy is with the City of Anniston concerning inventory searches?
"A. Whenever a vehicle is impounded, this vehicle has to be inventoried thoroughly in order to determine and document anything that may be contained therein.
"Q. Do you normally do those inventory searches?
"A. I haven't in a long time. I did for many years. I make very few arrests nor do I inventory many cars now.
"Q. When was the last time you inventoried a vehicle other than Glen's car?
"A. I can't tell you, sir. I don't know.
"Q. A year or two?
"A. Possibly."
Sergeant Watson testified that he did not know where in the city's policy regarding inventory procedures the criteria for conducting inventories were located. He did not know where the list compiled as the result of the inventory was located, and no such list was introduced at trial. *1278
Officer Bradley was also pressed on cross-examination about the city's policies and procedures regarding inventorying impounded automobiles:
"Q. It's the standard policy of the poliсe department of the City of Anniston to go out and get evidence whenever a car is impounded?
"A. No. You're always aware that evidence may be found when you're making an inventory.
"Q. And, of course, you always take a camera with you when you do an inventory?
"A. On some occasions, yes, sir, you do.
"Q. Always?
"A. Not always.
"Q. What percentage of the time?
"A. I beg your pardon?
"Q. What percentage of the time is a camera used in making an inventory search of a vehicle at the police department of Anniston?
"A. Usually, when we're aware that there is a major case involved, we will take a camera as routine procedure to document what condition it's in or anything we discover and to aid us in later documenting what was inside the vehicle.
"Q. Did you do any kind of recording while you were doing this inventory search?
"A. No, sir. That wasn't my job.
"Q. Did anybody?
"A. Yes, sir.
"Q. In whose possession is that recording?
"A. I don't know where the report is."
No other testimony was adduced by either the State or Boyd relating what the inventory procedures of the City of Anniston Police Department were. No directive, general order, or evidence of a municipal code was introduced that would show what the policies were.
Some of the items obtained as the result of the inventory were introduced against Boyd at trial. This evidence included a fabric very similar to or the same as that used to bind the victims; blood-stained clothes worn by Boyd and Milstead on the day of the crimes; and a necklace that had belonged to Evelyn Blackmon.
We take notice that the State prosecuted its case with extensivе testimony, nearly unfaltering, almost exclusively directed at the proposition that the warrantless search of Boyd's Camaro was valid as an inventory. Boyd's objections at trial and rulings in response thereto were directed at the validity of the city's inventory policies. The briefs to the Court of Criminal Appeals and to this Court primarily address the propriety of the search as an inventory. Only in passing did the Court of Criminal Appeals suggest that the search could have been valid as a "vehicle search" based on probable cause. In fairness to the parties, this Court ordered briefing on the probable cause issue to supplement the briefs filed on appeal.
In light of the foregoing facts and circumstances, we now turn to the analysis and resolution of this case.
In Colorado v. Bertine,
In Wilkinson v. State,
There is no doubt that an inventory of a vehicle conducted after a lawful impoundment of the vehicle and the arrest of its *1280 owner or operator is an intrusion into the Fourth Amendment rights of the owner or operator. In Opperman and Bertine, however, the Supreme Court held that such an intrusion was notunreasonable if accomplished within certain perimeters. The justifications for the intrusion — protecting the owner's property, protecting the police from false claims or disputes, and protecting the police from danger — are simply not served, however, when the inventory is inexcusably postponed; in that circumstance, the inventory becomes unreasonable.
If, for example, the police claim to be genuinely concerned about protecting an arrestee's property left in his vehicle after impoundment,5 the genuineness of the concern is open to question when the inventory is delayed: the longer the period of time passing between when the police take custody of the vehicle and when the vehicle's contents are catalogued, the greater the opportunity that the property will be stolen, damaged, tampered with, spoiled, or otherwise not maintained in the owner's best interests. Similarly, as the time passes between impoundment and the time when the inventory is to begin, so increases the likelihood that the arrestee might be released and perhaps press a claim for "lost" items that the police would be unable to dispute due to the lack of an inventory, or that items could have been overlooked during a hurried inventory. Most obviously ignored by the passage of time is the concern of danger to the police; the other concerns, but especially this one, suggest that the inventory must be conducted with sufficient temporal proximity to the impoundment to serve its justifications.
A review of cases from the Court of Criminal Appeals involving inventories of automobiles confirms our reasoning. In most of those cases, the inventories upheld occurred on the same day as the arrest and impoundment. See, e.g., Ringer v.State,
In the context of true inventory searches that are not conducted in relation to forfeiture proceedings,6 the cases involving the longest lapses between impoundment and inventory we have found are one in which the inventory was delayed for eight hours and one in which the inventory was postponed until the morning after the arrest. In Rudd v. State,
From the cases discussed immediately above, from the facts of previous cases from the Court of Criminal Appeals, and from the unspoken understanding evinced by the Supreme Court of the United States in Opperman and Bertine, we are convinced that our analysis is legally sound. Respondent argues in its brief that "[t]he record shows that the officers who inventoried the car were busily engaged in the first order of business during the interim before the inventory — locating the victims and the murder scenes and gathering and preserving evidence therefrom that was exposed to the elements, wild animals, or passersby." We appreciate this fact. The Fourth Amendment ensures the privacy rights of individuals, however, and in many circumstances the conduct of law enforcement officers must accommodate those rights.
We recognize that, generally speaking, inventory searches are constitutional on Fourth Amendment grounds. "Inventory searches must, however, 'be limited to effectuation of the recognized purposes for which they are conducted. . . .' " United Statesv. Bosby,
Throughout the majority, concurring, and dissenting opinions of Bertine are references to and quotations from the written procedures followed by the Boulder, Colorado, police department in conducting inventories. Accompanying that evidence was the testimony of officers concerning the manner in which inventories were accomplished. Upon review of that evidence, the Supreme Court was able to conclude that "reasonable police regulations relating to inventory procedures administered in good faith satisfy the Fourth Amendment," Bertine,
Here, we can not determine whether the regulations of the Anniston Police Department relating to inventory searches are "reasonable," or whether the police acted in accord with "standard criteria." Sergeant Watson testified that the inventory was done "in compliance with the policies of the police department." Officer Bradley added that he "usually" took photographs of the subject automobile when a "major crime" was involved. Neither officer knew where the policy was recorded. Furthermore, *1282
there was no testimony whatsoever that provided the particulars of the policy. Without more, we can not possibly conclude that the police department's inventory policy was reasonable. Proving the reasonableness of a warrantless search is a burden borne by the State. Teat v. State,
We note that in previous cases in the Court of Criminal Appeals involving inventory searches of automobiles, a police officer's conclusory testimony that the inventory was done in compliance with departmental regulations was apparently held to be sufficient of itself to meet the Opperman and Bertine
standards. See, e.g., Stone v. State,
Further support for our conclusion is found in United Statesv. Hellman,
"A Eugene police department regulation (Policy and Procedure Statement No. 17) provides for impounding of vehicles when they are parked in violation of law 'such as blocking * * * driveways,' and where the owner is arrested and there is no one to whom the vehicle can be released. Nothing is said in the regulation respecting the taking of an inventory of the car's contents. . . . The motion to suppress thе items seized from the car was denied.
"On appeal, the government contends that the only question is whether the impounding of the car was pursuant to standard police procedure. If it was, it is contended, then it follows as matter of law that an inventory was proper and that the search was reasonable under the fourth amendment.
"In South Dakota v. Opperman,
"The government here contends that since inventorying of impounded cars is, throughout the country, the practice generally followed by the police, it necessarily follows that it was reasonable here; that the only question, therefore, is whether the impounding itself was proper. We cannot agree.Opperman does not go this far. Quite the contrary is suggested. The Court states:
" '[T]here is no suggestion whatever that this standard procedure, essentially like that followed throughout the country, was a pretext concealing an investigatory police motive.'
"Here it is clear from the testimony of the searching officer that the citation, the impounding and the inventorying all were for 'an investigatory police motive.' This alone is sufficient to conclude that *1283 the warrantless search of the car was unreasonable.
Hellman,"But even if an investigatory motive was not shown, our decision would be the same because the inventorying of impounded cars was not shown to be a routine practice and policy of this police department, as was the case in Opperman. Certainly the record is clear that it was not the routine practice of the searching officer. It is the inventorying practice and not the impounding practice that, if routinely followed and supported by proper noninvestigatory purposes, could render the inventory a reasonable search under Opperman. The fact that other police departments routinely follow such a practice may give support to the proposition that such a practice, if locally followed, is reasonable. It does not, however, render reasonable a search where the inventorying practice is not locally followed and the search, thus, is a depаrture from local practice. A locally followed practice gives some assurance that a particular car was not singled out for special searching attention. Absent such assurance some special reason for the taking of safeguarding or security precautions that are not customarily taken should exist if the intrusion resulting from the taking of such precautions is to be rendered reasonable under the fourth amendment."
There is also in the case before us no inventory list in the record. None of the officers who testified knew where the list was, although they did testify that one was made. We feel that this fact, also, contributes to the failure of the search to qualify as a constitutional inventory. Cf. Ex parte Hilley,
We are not, by our holding herein, imposing new, strange, or unwarranted burdens on Alabama law enforcement agencies.8 Indeed, Opperman and Bertine created a narrow Fourth Amendment exception that renders admissible otherwise excludable evidence; however, for such evidence to pass constitutional muster, the record must sufficiently reflect what that policyis, describe the policy in such a way that its reasonablenesscan be reviewed, and present adequate evidence of what theemployed criteria were.
It is a "well-recognized principle that, where a group of officers is conducting an operation and there is at least minimal communication among them, [the appropriate course is to] look to the collective knowledge of the officers in determining probable cause." United States v. Esle,
In Opperman, the Supreme Court recounted the rationale that generally excuses the warrant requirement of the Fourth Amendment to the federal constitution when police officers have probable cause to search an automobile:
Opperman,"This Court has traditionally drawn a distinction between automobiles and homes or offices in relation to the Fourth Amendment. Although automobiles are 'effects' and thus within the reach of the Fourth Amendment, Cady v. Dombrowski,
, 413 U.S. 433 439 [,, 93 S.Ct. 2523 2527 ,] (1973), warrantless examinations of automobiles have been upheld in circumstances in which a search of a home or office would not. Cardwell v. Lewis, 37 L.Ed.2d 706 , 417 U.S. 583 589 [,, 94 S.Ct. 2464 2468 ,] (1974); Cady v. Dombrowski, supra, [413 U.S.] at 439-440[, 41 L.Ed.2d 325 ]; Chambers v. Maroney, 93 S.Ct. at 2527, 399 U.S. 42 48 [,, 90 S.Ct. 1975 1979 ,] (1970). 26 L.Ed.2d 419 "The reason for this well-settled distinction is twofold. First, the inherent mobility of automobiles creates circumstances of such exigency that, as a practical necessity, rigorous enforcement of the warrant requirement is impossible. Carroll v. United States,
, 267 U.S. 132 153-154 [, 45 S.Ct. 280 285 ,] (1925); Coolidge v. New Hampshire, 69 L.Ed. 543 , 403 U.S. 443 459-460 [,, 91 S.Ct. 2022 2034 ,] (1971). But the Court has also upheld warrantless searches where no immediate danger was presented that the car would be removed from the jurisdiction. Chambers v. Maroney, supra, [399 U.S.] at 51-52 [, 29 L.Ed.2d 564 ]; Cooper v. California, 90 S.Ct. at 1981[, 386 U.S. 58 , 87 S.Ct. 788 ] (1967). Besides the element of mobility, less rigorous warrant requirements govern because the expectation of privacy with respect to one's automobile is significantly less than that relating to one's home or office. In discharging their varied responsibilities for ensuring the public safety, law enforcement officials are necessarily brought into frequent contact with automobiles. Most of this contact is distinctly noncriminal in nature. Cady v. Dombrowski, supra, [413 U.S.] at 442 [, 17 L.Ed.2d 730 ]. Automobiles, unlike homes, are subjected to pervasive and *1285 continuing governmental regulation and controls, including periodic inspection and licensing requirements. As an everyday occurrence, police stop and examine vehicles when license plates or inspection stickers have expired, or if other violations, such as exhaust fumеs or excessive noise, are noted, or if headlights or other safety equipment are not in proper working order. 93 S.Ct. at 2528"The expectation of privacy as to automobiles is further diminished by the obviously public nature of automobile travel. Only two Terms ago, the Court noted:
" 'One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one's residence or as the repository of personal effects. . . . It travels public thoroughfares where both its occupants and its contents are in plain view.' Cardwell v. Lewis, supra, [417 U.S.] at 590 [,
]." 94 S.Ct. at 2469
The four-day delay between the impoundment and the search is not unreasonable due merely to the passage of time. UnitedStates v. Johns,
"We do not suggest that police officers may indefinitely retain possession of a vehicle and its contents before they сomplete a vehicle search. Cf. Coolidge v. New Hampshire,Id., 403 U.S. 443 523 ,, 91 S.Ct. 2022 2066 ,(1971) (WHITE, J., dissenting). Nor do we foreclose the possibility that the owner of a vehicle or its contents might attempt to prove that delay in the completion of a vehicle search was unreasonable because it adversely affected a privacy or possessory interest. Cf. United States v. Place, 29 L.Ed.2d 564 , 462 U.S. 696 , 103 S.Ct. 2637 (1983)." 77 L.Ed.2d 110
Based on our reading of Johns, we conclude that, because the officers of the Anniston Police Department did in fact have probable cause to search Boyd's vehicle at the time it was impounded, and because that probable cause continued throughout the four days between the impoundment and the search, the warrant requirement of the Fourth Amendment was excused. We *1286 are fully cognizant that "[t]he fourth amendment provides the minimum threshold of privacy protection in the United States. States can provide their citizens with additional rights supplementing those rights afforded by the federal constitution." Comment, Colorado v. Bertine Opens the InventorySearch to Containers, 73 Iowa L.Rev. 771, 793 (1988). Because the search was proper under the "vehicle search" exception to the warrant requirement of the Fourth Amendment of the federal constitution and under article I, § 5, of the State constitution, the evidence obtained during that search was properly admissible against Boyd at trial.
We have searched the record for any instances of plain error and have found none. We have also reviewed the record in its entirety and have concluded that the death penalty is neither excessive nor disproportionate punishment in light of this particular crime, this defendant, and prior similar cases. Therefore, we affirm the judgment of the Court of Criminal Appeals.
AFFIRMED.
MADDOX, JONES, ALMON, SHORES, ADAMS,** HOUSTON and STEAGALL,** JJ., concur.
KENNEDY, J., not sitting.