People v. Krezen

Krezen v KREZEN PEOPLE 6). (Calendar Argued April No. Decided 76631. Docket No. 30, 1986. December by jury in the Kent Circuit Krezen was convicted Sandra Lee Snow, J., fifty grams Court, possession of less than Roman J. possession of less than with intent to deliver and of of cocaine Appeals, grams and fifty Court of of cocaine. The Mackenzie (D. Holbrook, Jr., P.J., dissenting), reversed and E. Lamb, JJ. ground that evidence discov- for a new trial on remanded during inventory of her automobile of the contents ered impounded following her arrest had not been after was improper impoundment lawfully was obtained because 71895). (Docket appeal. people No. Brickley Boyle, joined by and opinions by Justices Justice In Supreme by Williams, Court held: Justice Riley, and Chief Appeals is reversed. of the Court of The decision Brickley Boyle, joined by Riley, and stated Justices Justice by federal constitutional violation there was no state or inventory police impoundment of the defen- and in the departmental impoundment was in accord with dant’s car. The constitutionally procedures procedures within the and the were Thus, authority municipality. of the evidence mandated validly consequence of the was cocaine found as a admitted. concurring, stated that because Williams, Chief Justice car, while in her her car defendant was not arrested arrest, lawfully parked there and locked at the time of her impeding any way

was no evidence that the vehicle was convenience, threatening public safety or trafile However, impounding reasonably in the car. be- did not act plain purse seat was in view on the front cause the defendant’s there, reasonably left of the car and could not have been returning inevitably would to the defendant because cocaine, discovery of the Court of have led to of the the decision reversed, Appeals should be Reversed. Cavanagh joined by Archer, Levin, Justice Justices or movement

stated that Mich Boyle, un- legally parked not authorized automobile was defendant’s Michigan. the law of der empowered in which the are Unlike cases parked so as it is disabled vehicle because or move a highway, in which represent users of a street or a hazard to the is unable to move intoxicated and is disabled or the driver removal, judicial decision or no statute or consent to vehicle police or the empowered seize the authorized property. defendant’s inventory impounded, lawfully an has been Unless a vehicle "caretaking” justified under a and seizure cannot search lawfully case, defendant’s vehicle was In this the rationale. impounded as an incident impounded. have been It could not Krezen’s danger because of theft vandalism arrest. The her did not of her automobile purse on the front seat was visible purse. The impoundment or of the justify her automobile of safe- obligation themselves with the police to concern had no so, property. Krezen should keeping did of Krezen’s When do, leaving including the given the choice of what to have been impounded. for it to be it was rather than automobile where purse place might in the trunk her have offered An oflicer automobile, searched after it had been to hand it to her her inquired Krezen wished weapons. what The neither for any purse, made her nor her automobile or to be done with safekeeping. provide for their to allow her to effort (1985) App reversed. NW2d 882 143 Mich General, Louis J. Kelley, Frank J. Attorney Sawyer, David H. General, Prose- Caruso, Solicitor McMorrow, Chief K. Timothy and cuting Attorney, for the people. Appellate Attorney, Buth George S. the defendant. if case, to decide In this we are asked J.

Boyle, during car from defendant’s evidence obtained impoundment after of its contents impounded by The car was was admissible. by was arrested after the defendant Kent at Department Police Rapids Grand by had been alerted Airport. County California, pack- that Diego, authorities San cocaine. contained up the defendant age picked Boyle, freight parked by The car was the the air office left the front seat of defendant’s was on found the the car. The trial court this case Appeals admissible, the Court evidence reversed on obtained in an but for a new trial the decision and remanded unlawfully ground the evidence was that improper impoundment.

We the trial court’s determination affirm inventory of Sandra Krez- Amendment of en’s car did not the Fourth violate the the inventory impoundment therefore United States Constitution purse consequent to the found in her cocaine validly into was admitted evidence. case in accord with this proce- departmental procedures, departmental constitutionally mandated dures were within the power municipality, and no violation of The decision state or federal constitution occurred. of the court’s admission of the evidence obtained the Appeals reversed, trial and the Court

during inventory car is of Krezen’s reinstated. I. THE FEDERAL IS NOT VIOLATED CONSTITUTION

BY THE POLICE IMPOUNDMENT AND OF CAR

INVENTORY KREZEN’S The of Fourth Amendment the United States provides: Constitution right people in their The be secure houses,

persons, effects, papers, against unrea- seizures, sonable searches and lated, shall not be vio- issue, upon prob- no and Warrants shall but cause, affirmation, supported by able Oath or searched, particularly describing place to be persons things and the to be seized. Opperman, 364; In 96 S South Dakota v 428 US (1976), 3092; Ct 49 L Ed the United States 2d Supreme upheld lawfully inventory Court an 427 Mich Boyle, the car The inventoried police vehicle.1 impounded observing a after procedure, to standard according plain car” in view. inside the "number of valuables care- was seen as a Id., inventory pp 375-376. investigative rather than taking function found that A of the Court majority search. unreasonable under was not police conduct2 determining In whether Amendment. Fourth unconsti- Opperman in warrantless tutional, the facts and looked "to all the Court California, case,” Cooper v of this circumstances (1967), 788; 17 L Ed 2d 730 59; 87 S Ct 386 US "un- was not police conduct to determine reasonable”: pres- prompted by the inventory itself was inside plain a number of valuables

ence in the car. As view of 433; Dombrowski, 413 US Cady [v (1973)], no 2523; there is 37 L Ed 2d 706 S Ct procedure, this standard suggestion whatever throughout the coun- that followed essentially like investigatory concealing an pretext try, was a US motive. [428 375-376.]_ typical circumstances which some of the The Court discussed impoundments occur: part public safety the Court and as of what In the interests of functions,” caretaking Cady "community Dom-

has called (1973)], 433, 441; S 37 L Ed 2d 706 US 99 Ct browski [413 police custody. frequently Vehicle taken into automobiles are accidents rupted evidence, permit present uninter- such occasion. To one preserve of traffic and in some circumstances flow damaged will often be removed disabled or highways vehicles engaged or streets at the behest from the solely also parking public safety The vehicles caretaking will traffic-control activities. Police frequently automobiles which violate remove and jeopardize thereby both ordinances and which of vehicular traffic. and the efficient movement authority from the streets to seize and remove threatening public safety impeding and con- traffic or challenge. [Id., pp beyond omit- 368-369. Citations venience is ted.] inventory Opperman did not determine whether Court 370, n 6. was a "search.” 428 US People Boyle, J. inventory The actual in the instant case was conformity Opperman. carried out police with according departmental procedure, acted completing inventory a standard form. Further- more, plain the defendant’s was located in inventory view on the front seat of the car. The " caretaking 'was a routine administrative func- performed pursuant departmental tion to standard (On procedures Long Remand), ....’” (1984). 636, Mich 359 NW2d 194 impound- The true issue is whether the initial ment of Krezen’s car was a constitutional viola- impoundment tion. The text of a standard occurred within the con-

departmental policy upon that, driver, arrest of the all vehicles not released to impounded. another driver were to be The defen- argues policy dant unconstitutionally is overbroad, since it does not allow an exercise of discretion the officer. departmental policy

The actual is unclear. One impoundment required officer testified that when the owner/driver is released to another is arrested "unless that car

person by authority of the owner.” Another officer testified that when an impounded made, arrest is the car is "if it is party released to another in the vehicle.” If the policy written, is it was never entered into evi- Appeals dence as an exhibit. The Court of decision Rapids policy described the Grand as "to following all motor vehicles App arrests of their . . drivers . .” 143 Mich (1985). 40; 371 NW2d 882 departmental policy If the is indeed that all require impoundment, regardless arrests surrounding may circumstances, factual there well be situations in which an would violate the Fourth Amendment as an unreasonable policy However, seizure. unclear, actual Mich 681 427 Boyle, J. Opinion impound- specific render the in this case the facts eminently this is Since reasonable. ment decision not an alleged violation, First Amendment impoundment applied as reasonableness case is what is determinative —the the facts of this might regulation in some case mere fact pertinent where the is not overbroad be activity constitutional. defendant was vis-á-vis this e.g., Raines, 17, 21; US See, United States (1960). 4 L 2d Ct Ed S simple occurred fact that it unconstitu- not make a warrant does without supra, p per Cooper California, se. In tional Supreme Court observed: the United States is unreasonable and seizure a search [W]hether Amendment meaning of Fourth within the of each upon depends and circumstances facts constantly that are case[;] . . . of cars searches without a of a car may make the search movable warrant although result a the a reasonable one home, might store, opposite in search of property. piece fixed or other impound- with this case deals While issue species than of of "seizure” rather ment —a "search” —the

analysis searches used relation instructive. upheld Cady, the "search” of the In the Court being which, in an trunk of an automobile after garage. private accident, to a was towed was a search was instituted because defendant Chicago policeman and the Wisconsin did might revolver, have not want his service which wrong car, in the to fall into the hands been endanger public p safety. Id., 443. In the course of looking revolver, other for the found incriminating to the defen- evidence which led Court deter- murder. The dant’s conviction for Boyle, mined that lack of a warrant was not fatal and the trunk search was reasonable under the facts of the case: previous recognition

The Court’s of the distinc- dwelling places tion between motor vehicles and caretaking leads us type to conclude that "search” conducted here of a vehicle that was custody premises neither in the nor on the its owner, placed by that had it been where was action, virtue of lawful was not unreason- solely able because a warrant had not ob- been tained. The Framers of the Fourth Amendment have given general only us the standard of "unrea- guide determining sonableness” as a searches and whether meet the standard seizures Amendment in those cases where a warrant is not required. Very little that has been said in our previous might the Amendment detailed formula for very decisions . . . and little that we language

say usefully here can refine the in order to itself evolve some judging cases such as this. Where, here, automobile, as the trunk of an which gun, reasonably officer believed to contain a vandals, was vulnerable to intrusion we hold that the search was not "unreasonable” within the meaning of the Fourth and Fourteenth Amend- [Id., pp ments. 447-448.] case,

In the instant of Krez- car en’s without a warrant was not unreasonable per Cady, prem- se. in As the car was not on the owner, and, occurred, ises of its once the arrest it longer possession. was no in the owner’s actual "impounding” While a house without a warrant just because the defendant was arrested outside of could, circumstances, the house under certain per se, unreasonable a car is a different matter. Its transportable very nature as a nonfixed item subject makes and its contents more to theft or damage. Cady, pp 441-442. A number of courts 427 Mich Boyle, theft or possibility of recognized that

have impounding a car reason is a valid vandalism driver, no where especially arrest of upon take control of car. (CA person is present other Staller, v e.g., United States See, 616 F2d Scott, (CA United States F2d 874 5, 1980); Virginia Superintendent, State 1981); Cabbler v Penitentiary, (CA 4, 1975); State v 528 F2d 1142 Sims, 1983). (La, courts have 2d 148 Other 426 So private in a leaving parked a car recognized United States be a nuisance. may location Brown, 1986). (CA 4, impound- F2d 929 rather than an caretaking function was a ment one, according standard instituted investigative protect the defendant departmental policy thefts, recriminations, unnecessary from following trial court found civil suits. as true: opinion

It is of this Court that search and obviated the vehicle was an the need search was search warrant; reason for the for a that the being protect items from stolen the against any loss or claims of protect the pretext of it not for the property; that was stolen activity any unearth further criminal trying to upon part of the Defendant. the warrant, was impoundment, even without not unreasonable under the Fourth likewise t.3As describe in people Amendmen the brief: arresting prop- The officers were the defendant 3 if that Krezen’s Even we were hold the should have left lot, parking reasonably left her in the could not have car purse plain purse sitting on the front seat. The would most in view require likely possession, which would have been returned to Krezen’s protective weapons of the and an search for at the site arrest subsequent booking, inventory see Illinois at to her search the station (1983). 2605; Lafayette, 640; L v US 103 S Ct 77 Ed 2d Opinion by Boyle, J. morning. Saturday It erly felony. for a serious was arraigned defendant would not be They knew the parked away from the Monday. until car was Her plainly was part airport. main of the Her car. The officers on the front seat of her visible past following police not sued in the had been of the policy in this area. How can actions vehicle and police conducting impounding in the defendant’s contents, under all of its circumstances, be held unreasonable? these that a Appeals was concerned The Court less used to obtain intrusive means could have been vandalism, theft, against the same insurance People Krezen, 143 Mich against police. suit However, as the United States Su- 41-42. App Cady, supra, 447, in p Court observed preme "[t]he protection public might, that fact intru- accomplished 'less abstract, have been not, itself, render search sive’ means does Sharpe, See also United States unreasonable.” 1568; L 2d 605 470 US 105 S Ct Ed (1985). of Krezen’s car case this given neither nor unreasonable arbitrary Therefore,

surrounding did circumstances.4 parked long-term parking Krezen was not in the lot at the Kent offices, Airport parked freight County housed in a outside the air —she building only long. originally one-hundred feet While she testified parking "huge,” area was she later said that no more than parked around seven cars —a few cars —were there. She also said parked "directly freight only she in front of the office.” The air inference to be drawn from the record is that parking this was a small parked temporarily area intended for vehicles while the cargo quick trip drivers made a references cars there for into one of the air offices. No people customarily leave their the record indicate that days on end. 'caretaking’ impound- Justice rationale for Levin asserts that "[t]he inapposite person ment is police safeguard when the arrested does not desire that person’s property accepts responsibility for possible The decision losses.” issue here is whether police purpose certainly the car was reasonable —the the trial court factor in such a determination. Had relevant found 427 Mich 681

690 Boyle, J. of the United Fourth Amendment violate Constitution.5 States WAS

II. CONSTITUTION NOT THE MICHIGAN BY THE IMPOUNDMENT AND VIOLATED CAR OF KREZEN’S INVENTORY that the federal been determined Once it has suppression require of does not constitution purse, plain in found Krezen’s cocaine residue prohibits language 1963, 1, § 11 exclu- art of Const Michigan Constitu- under the evidence sion tion: houses, possessions of papers and person, from unreasonable every person shall be secure any and seizures. No warrant search searches place things person shall issue any or to seize them, probable describing nor without without cause, provi- or affirmation. supported by oath to bar not be construed

sions of this section shall from proceeding any any any criminal evidence ñrearm, bomb, explosive drug, narcotic peace weapon, by a officer dangerous other seized dwelling in this curtilage any house outside the state. their state have construed

While some state courts barring in in as evidence obtained constitutions ventory federal constitut valid under the searches prohibits plain language 1, § ion,6 11 art provisions this shall “The section such result: car, surely pretext was a to search Krezen’s police purpose relevant would consider the Justice Levin determining reasonableness. 5 717, Levin, holding opinion: p of this misstates Justice case, instant under the facts and circumstances the Fourth Amendment not unreasonable under either conduct was 6, art 1. to the United States Constitution Const § (On (SD, Remand), Opperman See South Dakota v NW2d 1979). Commonwealth, 1976); (Ky, Wagner SW2d by Opinion Boyle, J. not be construed to bar from evidence in any proceeding criminal narcotic . . any drug . seized by peace a officer outside curtilage of any dwelling house in this state.” Cocaine was discov ered of Krezen’s car which oc Thus, Rapids airport. curred at the Grand there is no excluding basis this evidence under Michigan Constitution. THE

III. RAPIDS POLICE HAD GRAND AUTHORITY TO CAR

IMPOUND KREZEN’S in conformity officers acted with the stan- procedure police department dard of im- pounding all vehicles where the defendant was placed under arrest and there was no other driver present the vehicle to take control of the vehi- according cle. The reason for this to the policy, suppression hearing, officers who testified at protect by persons was to officers7 from claims filed police liability Justice Levin asserts that there is no under Ross v (On 567; Rehearing), Consumers Power Co (1984), 420 Mich 363 NW2d 641 damaged property for lost or where the make an arrest has, course, impound personal property. question and fail to That Court, yet by not been decided this its relevance relates to might whether the belief that there some form civil liability officers in this case were sued for person car mental property damage under impoundment. adds to the reasonableness of the The two damage unimpounded by to an car by Ironically, impound arrested them. the officers failed to Furthermore, solely request govern at the of the arrestee. if even immunity protected the officersfrom a state law tort claim for loss, clearly cannot immunize them from suit law. federal It is an understatement to observe that the current state of federal law is unclear on whether such an omission is a "deprivation any rights, privileges, or immunities secured Constitution and the laws . . . .” 42 USC 1983. The United States Supreme yet Court has not decided whether the absence of a state remedy sovereign immunity remedy because of would make that "inadequate” Williams, 327, —, purposes. for 1983 Daniels v 474 US § (1986). 1; 662, 669, 662, 669, Thus, n 106 S Ct n 88 L Ed 2d n 1 case, under the circumstances of the instant suit was the asserted fear civil hardly hardly say necessary unreasonable. It seems holding justifies we are not "that unfounded suit fear of civil (Levin, J., p search or seizure under the Fourth 47.) n Amendment.” Mich Boyle, suffered, suffered, have thefts or claimed to

who impounded involving other losses vehicles our under arrest.8 Under while the driver was mu- constitution, powers granted generally specific powers granted by nicipalities, police, its Grand Rapids Grand charter authority basic Rapids police had of Sandra Krezen.9 car occasions, sir, you Q. of Are with where members familiar department perhaps people very police the room have been sued for and even this missing items that are from cars? Very A. much so. Q. you specifically in this with someone court- Are familiar missing alleged to be for items that were room that’s been sued from a impounded? car that not was A. That’s correct. be, Q. sir? Who would that myself. Price also A. Officer that, Q, part You of too? were Yes, erroneous, the I was named in lawsuit. A. sir. It but was impounded Q. where a vehicle was Was a case pursuant request person the arrested? to Yes, sir, it was. A. missing Q. allegations were later were made that items And

from the car? A. That is correct. result, Q. you police of as a and other members the And sued, department, police department the itself all is that were correct? That’s A. correct. necessary by that the This discussion is made Justice Levin’s view improper it was statute because not authorized judicial authority, statutory "In the absence of it becomes decision. judicial for decision whether the are matter or common-law (Post, private property . . . .” authorized to p move 714.) judicial power support imposition is on of No cited in of source governments proposed of this state. Justice Levin’s Const rule the local 6, 1963, judicial power “the in our art 1 vests state” § not, however, judicial system. proposed an Justice Levin’s rule is power judiciary. violation of the state exercise of a or federal the power regulation. vested No Rapids justify is found to constitutions Grand proposed judicial apparently alteration of an reasonable dispute government a local Since here involves citizen, private application of a common- official and a this is not Opinion by Boyle, 7, Legislature requires art Const §21 vil- of cities and incorporation for the provide lages: general for provide by laws legislature shall villages. Such laws incorporation of cities and property taxa- limit rate of ad valorem shall their power municipal purposes, and restrict tion for villages money and contract to borrow

of cities power village granted city and is debts. Each purposes, subject public levy other taxes for by this con- prohibitions provided limitations and byor law. stitution provided indeed Legislature has 5.1201, 61.1; MSA villages, MCL

incorporation 5.1592, class, 81.2; MCL MSA of the fourth cities cities, home rule of the fifth class and and cities and fourth 117.7; villages10 MSA 5.2086. For MCL private right just individu- 485, between law determination what als in 269 NW 570 Fowle, Bugbee respect private disputes, Mich (1936). proposed by is one which could the rule Justice Levin While Rapids governing body, appropriately adopted by it is Grand impose municipality. "There not may which this Court should on the one Legislature may quickly not act or at be some concern that the all, acting surely proper in the is not for this Court but that basis 191, 198; Gilbert, Legislature.” People 414 Mich 324 name of the NW2d 834 J.). (1982) (Levin, 67.44; provides: MCL MSA 5.1328 any village may provide The of for and establish a council force, may president appoint, by and authorize the to council, time, and with the consent of the number expedient protection they may emergency from time to such policemen night they of and watchmen as shall deem good government village, for the of the and for the inhabitants, persons property of the and of the and president village, authorize the of the in cases of such number of danger, appoint, temporarily, and policemen judgment may require. as in his the occasion 67.45; provides: MCL MSA 5.1329 govern- necessary rules for the council shall make all police, proscribe powers of

ment of the and the and duties 427 Mich by Boyle, provides cities,11 specifically Legislature the class the local authority of delineating the statutes general the and over their bodies governing rule and home For fifth class powers police. provi- two relevant cities, provides the Legislature 5.2073(j) provides First, 117.3(j); MSA MCL sions. the is provision mandatory that a charter "[f]or of safety for the health and public peace and MSA 5.2083 117.4j; MCL persons property.” and municipal powers: for provides generally more may provide: city Each its charter (1) department any For of the establishment necessary general the wel- it deem for may watchmen, they policemen may invest them with such and and quiet necessary preservation authority may for of and as the village. good order in the 92.1; provides: MSA 5.1749 MCL ordinance, provide, by any city may for The council of mayor appointment of such force for the the and may policemen nightwatchmen as think of and number necessary protection good city government the and for the the of inhabitants; persons property and of and of mayor appoint special policemen from may authorize time, necessity judgment emergency or time when his require. may so 92.2; provides: MSA MCL 5.1750 regulation may The council and establish rules for the make government prescribing defining police, and powers prescribe and policemen nightwatchmen, and and duties and shall police regulations and enforce such as will most effectually preserve good city, peace and order of violence, preserve public personal protect inhabitants from private property from destruction fire and from authorized, depredation. mayor hereby unlawful when- preservation necessary peace he ever and shall deem for the appoint place duty good city, in the order on such policemen temporary judgment his the emer- number gencies as in appointments, may require; unless of the case but such with some ordinance or resolution of made accordance longer days. shall council not continue than v Keezen Boyle, by city, separate incorporation for the fare of the thereof: and Provided, however, provisions That these shall not construed to extend to and include be schools; public

(2) altering, amending repealing any For or special existing municipal department, ment in control of the affecting any municipal concerns or act depart- but public schools shall not be municipal department; construed to be a (3) municipal powers in For the exercise of all management municipal prop- and control municipal erty and in the administration of the government, powers expressly whether such not; any enumerated or act to advance the good government city, interests of the and prosperity municipality and its inhabitants through regularly authority and its constituted pass pal relating all laws and ordinances to its munici- subject gen-

concerns to the constitution and [Emphasis eral laws of this state. added.] general grant power municipalities 1963, 7, § 21, which is authorized Const art and which is activated the various state statutes concerning municipalities, the charters for local highlighted 7, § further 22: Const art general city Under laws the electors of each village power shall have the authority frame, an charter, adopt and amend its and to amend existing village city charter or heretofore granted legislature gov- enacted for the village. ernment of city city Each such and resolutions and village power adopt shall have relating concerns, ordinances property tion and municipal to its government, subject to the constitu- powers granted law. No enumeration of villages to cities and in this constitution shall limit general grant restrict the authority conferred by this section. simply There is no basis to assume that Grand 427 Mich 681 Boyle, by authorize, to the power not have Rapids does to police department its expressly, implicitly such valid arrests incident to in activities engage 22 expressly Art vehicles. impounding § as power adopt to resolu- "have that such cities states municipal its relating ordinances tions and the subject concerns, government, and property The Comment and law.” Convention constitution is a language new 7, 22 to art states "[t]he § powers, giv- municipal of more statement positive over power full villages rule cities and ing home to this subject government, their and property own and law.” constitution the establishes City Charter Rapids

The Grand public safety, director of manager as the city Rapids Grand police department. the charge of 96(a). Charter, manager prescribe "shall city § man- control and regulations and all rules 96(d). Most force agement police of ....”§ given grant authority important general police officers: by the charter City police all Safety Director of Public possess and detectives shall have officers power upon usually met- authority conferred ropolitan police. 96(g).] [§ and their long municipalities

So as the local case, as instant do agents, such preeminent not or a circumvent the constitution statute, state constitutional authority such a viola- abridged. is not Absent municipality tion, govern- the local this Court cannot hinder In the instant power. ment’s exercise case, argued parties have briefed Rapids police possess or not the Grand whether Opinion Williams, C.J. power con- Given the cars.12 the basic grants apparent and the framework stitutional authority police, no basis this there is to the authority. abridging that case for CONCLUSION IV. statutory viola- no constitutional

There was impound- Rapids in their the Grand tion car. Under Sandra Krezen’s ment and police activity rea- case, of this the facts impoundment were sonable. part caretaking function, out carried normal of a policy departmental pursuant which to standard constitutionally mandated author- the was within government. municipal would, ity there- We of the Appeals the Court of fore, decision of reverse the conviction. defendant’s and reinstate the Brickley Riley, JJ., Boyle, with concurred J. (concurring Boyle). with Justice C.J.

Williams, i of Justice in with section While I am accord agree Boyle’s opinion I with her statement constitutionality of that the true issue is agree impoundment, I am unable to with initial her resolution was lawfully of that issue. Because defendant car, her car was not arrested while her parked her at the time of and locked no evidence that her vehicle arrest and there was threatening way "impeding any traffic or was public safety ,” . . . South Da- and convenience Opperman, 364, 369; 96 S Ct 428 US kota v 21 upon opinion predominantly his Part IX of Justice relies Levin’s impoundment unlawful in the instant case was conclusion that under Court of the Michigan contrary, majority of this common law. To the authority impoundment agrees was within the lawful that police. 427 Mich Dissenting Levin, J. (1976), persuaded that I am 49 L Ed 2d reasonably when acted officers impounded the car. plain purse inwas However, defendant’s because agree car, I with her of on the front seat

view Justice Boyle rea- could not have 3.) (Ante, p sonably returning Since n it there. left have inevi- would to defendant discovery1 her tably purse, Appeals of the cocaine led to agree of the Court decision of I reversed.

should be (dissenting). was Lee Krezen Sandra Levin, grams fifty possession of less than convicted cocaine with less than Appeals possession of to deliver1 and intent grams fifty The Court of cocaine.2 on a new trial remanded for reversed and during ground in- that evidence obtained the ventory after her automobile contents of following impounded had not been her arrest was lawfully improper.3 because obtained would affirm. We

i Department Rapids had been Police The Grand Diego, California, in San notified authorities freight by package air to Grand en route that a Rapids the claim the at Police officers contained cocaine. Airport County Krezen observed Kent package, then arrested. and she was parked, airport, and driven to the Krezen had freight parking in an air her automobile locked judge dissented. (Williams, 81 L ^[2] 1 1 People People MCL MCL Ed 2d 333.7401(1), (2)(a)(iv); 333.7403; MSA J., concurring); 377 Krezen, Kusowski, (1984). 143 Mich 14.15(7403). 403 Mich Nix v MSA App Williams, 14.15(7401)(1), 653, 662; 371 NW2d 882 467 US 272 NW2d 503 (2)(a)(iv). 431; 104 S Ct (1985). (1978) 2501; One Dissenting Opinion Levin, arrested, im- was officers lot.4 After Krezen pounded its con- and inventoried her automobile syringes, They hypodermic three tents. discovered containing residue, "foot- and a ers,” vial cocaine brown snorting These for cocaine. instruments used had Krezen’s which been found in were visibly lying the front seat of automobile. on possession fifty for of less than Krezen’s conviction grams the cocaine residue of cocaine is based on vial. the brown hearing, evidentiary at testified officers suppress to the evidence seized Krezen’s motion

on they automobile, had inventoried in the Rapids a of the automobile on Grand contents Police pursuant Department inventory form procedures.5 They departmental policies said finding they expectation when had no evidence of the the contents commenced acknowledged They automo- that it automobile. legally parked. in an area was Because was bile parking away area, from the main there relatively on traffic. was arrested little Krezen arraigned Saturday, not Mon- until would failing civilly day. Both officers had been sued procedures departmental impounding al- to follow legedly resulting belonging in the loss of valuables to the arrested person.6_ proceeded then to the Krezen airline service desk to claim package. signed Kelly She for it the name of She was Heaton. freight by the she arrested before left the air office. policy An officer testified that the is that a vehicle there’s "[w]hen arrest, policy department

involved and we make an car for is we take safekeeping person unless that car is released another authority of the owner.” person officer that in he had One testified another case arrested person parking driving. lot seated who was arrested was arrest, passenger placing on the the officer advised him that he was of the vehicle. After him under side taking safe his automobile for keeping offer was automobile lose in the This so that he would not valuables automobile. declined, saying the owner he wished the driver vehicle, possession officer had retain 427 Mich Dissenting Opinion Levin, J. did not will- Krezen that was evidence

There keys the over to ingly of her automobile turn the her for police. asked that the officers testified She give keys keys, the hesitated to that she the if did not that she officers said them, that the responsible keys for give the she would them breaking An officer automobile. into her them refused, then she Krezen that at first testified gave they keys. asked whether When them the rip off, the officer the doors threatened had carry responded: vehicle our an instrument "We open any I with. wouldn’t car door can that we you rip asked, "[d]id off.” When the doors have to responded: open?”, he trunk to tear the threaten open.” pry trunk the "I said we would judge suppress, denying did motion to In keys over turned the Krezen had find whether police voluntarily.7_ to the person claimed that request. was arrested agreed who to that gone, and pick up valuables were his automobile his went to when he then commenced failure claiming against the officer an action regarding impounding procedures departmental to follow other officer testified of the loss. The was a cause of the automobile where, pursuant to the lawsuit had named in this that he also been arrested, impounded. request person had not been a vehicle judge said: them, case, indicate that in this as I understand The facts report package was police coming that intercept that a in this area had received a Street; freight airport on 44th office of the into the air cocaine; they package were to and that contained up person picking package to arrest the package. they They They saw the have done this. have indicated arrive, airplane, package being person saw matter of freight out of the taken saw package. As a for the the Defendant come and ask fact, up air Defendant drive outside the saw the freight proceed office. terminal and into the air arrest, They under in this case that after the have testified police policy, they which to take the vehicle in were standard the Defendant drove her was whether she question up safekeeping. only Their They had seen her owned the vehicle. up had been that it was a vehicle that she drive operating, in it and knew n only to her that and Officer Price indicated Dissenting Opinion Levin, II Appeals The Court of reviewed decisions of the Supreme concerning impound- United States Court inventorying property, ment and South Dakota v Opperman, 364; 428 US 96 3092; S Ct 49 L Ed 2d (1976), Cady Dombrowski, 1000 433, v 441; US (1973), 2523; 93 S Ct 37 L Ed 2d and this (On People Remand), Long Court’s decision v (1984). 636, Mich 359 NW2d 194 Opperman, In South Dakota v the United States Supreme police Court held that had not vio- lated the Fourth Amendment of the federal consti- they inventory tution when conducted a routine impounded lawfully search of an automobile violating municipal parking Cady In ordinance. supra, pp Dombrowski, 442-443, the had properly custody also "exercised a form of or con- trol over the” vehicle. It had been "disabled aas result of [a one-car] accident, and constituted a along highway. Respondent, being nuisance (and comatose), intoxicated arrangements later could not make

to have the vehicle towed and police, stored. At the direction of the and for they keys reason car, wanted the were to check the items inside the protect being stolen, these they items from told her they keys that for they taking needed the because were the car in safekeeping. They testified, them, further each of had no reason any to believe that there were contraband items inside of the vehicle. opinion It is the of this Court that the search of the vehicle inventory was an that the warrant; search and obviated the need for a protect reason for the search was to the items from being protect police against any stolen or claims of loss or property; pretext stolen trying it was not for the any unearth Defendant. activity upon part further criminal of the my opinion search, It proper inventory that it was a suppress the motion to should be denied. 427 Mich Levin, Dissenting Opinion automobile safety, reasons of elemental garage.”8 to a private towed said supra, p this Court Long, In lawfully has been "a motor vehicle that when not bar Amendment does the Fourth impounded,” inventory ‘search conducting from procedures.9 standard established pursuant impound- observed that Appeals Court of justified have procedures been ment and (1) grounds: protection "on three distinct (2) protec- police custody; while held property lost or stolen claims over police against tion (3) from protection property; potential danger.”10 "the standard said that Appeals Court of

The Department Grand Police Rapids policy follow- all motor vehicles inventory and impound too "simply was ing the arrests their drivers”11 backdrop of against broad when viewed an officer allowing Instead of Fourth Amendment. discretion, blanket his individual such to exercise inven- encourage impound and police policies driver is taken every vehicle whose tory each police to locate a revolver entered the vehicle effort The might there found. The driver had reason to believe be had officer, department regulations police himself as identified required gun at times it not on to have his with him all and was him concerned, Court, safety person. police "for The said the his were might endangered general public re if an intruder of moved who Dombrowski, Cady revolver from the trunk of vehicle.” supra, p 447. possession marijuana after his The defendant was arrested for being pursued by the had observed it automobile was driven at excessive who speed. and it was after The defendant was alone midnight. impounded. question was whether automobile containing bags marijuana paper thereafter found in the trunk two opening the trunk were admissible evidence. This Court held could not be sustained as an search because conducting department procedure for had no established standard inventory searches. 10Krezen, supra, p 39.

[11] Id., p 40. Dissenting Opinion Levin, J. regardless custody, into of whether such action is necessary or reasonable under the circumstances. safeguard motor Procedures both vehicle and police in such situations can and must be better fit tailored to the dictates of our state and federal constitutions.”12

The Court "[t]he said that burden is on the state impoundment any necessary to show that is both possibility and reasonable.”13 The "mere of theft or vandalism to the contents of a vehicle left unat- tended, which, may realized,

if in turn lead to against damages, claims for loss or does compare importance preservation with the guarantees.”14 of basic constitutional The Court held: permissive the owner or user of a motor [W]here present incapacitated,

vehicle is and not imminently arresting reasonable for the officer to first obtain the owner’s consent search the vehicle or otherwise allow the owner a opportunity arrange reasonable to make alternate vehicle.[15] ments to secure the The Court further held: necessary is not where a car is ^[12] Id. 13Id., p 41.

14 Id., p 40. 15Id., p 41. The Court continued: instance, might For an owner make a reasonable decision to lawfully parked point leave his vehicle arrest, at or near the of his unattended, expected albeit if his detention is to be merely temporary. might give physical Or an owner decide to custody making may friend, relative, passenger. of By his vehicle to a arrangement impoundment, such in lieu of an owner (towing storage) also avoid the incidental costs that against

would otherwise be assessed him. 681 Mich 427 704 Dissenting Opinion Levin, J. regular flow impede parked, does lawfully threat any traffic, pose and does not otherwise of user permissive public If owner safety. an nor impounded requests his car be neither that consent, presumed to have

gives he will be his damage of any claims loss risk assumed that arise.[16] may to im- the decision that The Court concluded necessary neither automobile was Krezen’s pound and, therefore, subsequent that reasonable nor Krez- Accordingly, invalid. search was possession of the brown based on en’s conviction reversed. residue was containing cocaine vial that Krezen’s convic- concluded The Court also intent to deliver of with cocaine possession tion for a new trial and remanded reversed should be the introduction say it could not that because a result of search as the evidence obtained Krezen testified purse was harmless. Krezen’s at the up had package picked she thought she her boy- her airport money contained owed friend. thought that Krezen’s dissenting judge incentive offered attractive

"purse may have "Furthermore, as defendant potential thieves.”17 16Id. The Court continued: procedures required juris in other We note that similar are See, 575; Mangold, e.g., 1312 82 NJ A2d dictions. (1980); State v Thomason, App 345; v 265 SE2d 312 418 State Ga Schultz, 1071; 362; (1980); People App 49 Ill Dec 93 Ill 3d (1981); Gaut, (La, 1978); Virgil NE2d 6 State v 357 So 2d Placer,

Superior County App 2d 268 Cal Cal Court of (1968). 2d, generally Rptr & 68 Am Jur Searches See 57, 708, Seizures, p [Id., pp 537. and 48 ALR3d § 41-42.] 17Id., p judge 43. continued: agree duty I do not have ascertain independent arrangements ability for an to make defendant’s automobile. Even provisions for if had made suitable defendant 705 People v Krezen Dissenting Opinion Levin, custody Saturday morning, was taken into was Monday on she going arraignment until be detained her on

morning at least. The risk of harm to her night appreciably vehicle would increase each parking in was left unattended this isolated lot.”18

hi agree Appeals. We with the Court of There was no issue whether the defendant’s properly impounded vehicle was in South Dakota v Opperman, parked, illegally where the vehicle was Cady Dombrowski, or in v where the vehicle was disabled, the defendant was arrested for intoxica- passenger tion and there was no vehicle, Long.19 cases, In Courts, those proceeding on the basis that the vehicle was law- fully impounded, question addressed the whether during inventory evidence obtained tents of the vehicle was of the con-

properly seized. case, In the instant we need not address the inventory question20because we conclude that nei- vehicle, required

her to party cannot be to wait for her period arrive to secure the car. As even a short of inatten- property damage theft, tion could result I find that [Id., p was a reasonable alternative. 44.] 18 Id., 43-44. pp appear It does not whether the vehicle was disabled. It came to a (see 9) stop following the chase n "with the front of the car in a shallow ditch and officers "had roadway.” the back of the car on the One of the opinion 'appeared formed the that the defendant to be something.’” under the influence of midnight It was after and the apparently defendant was setting. People alone in this Long, rural supra, p events, 644. concerning In all validity no issue was raised impoundment; only of the validity issue concerned the of the impoundment. made after the people’s Institute, reference to American Law Model Code of Pre-Arraignment (Proposed Draft, April 1975), Procedure Official 230.6(3) inapposite speaks propriety § because it of a search impounded, question vehicles and does not address the when a may impounded. vehicle Mich Dissenting Levin, J. prop- nor her Krezen’s automobile

ther erly impounded.

A airline left the before she was arrested Krezen parked legally was Her automobile freight office. lot. parking nearby in a Krezen’s of no search

There was basis There is to her arrest. as an incident automobile to necessary it was suggestion that no contents, or to vehicle, its to the from police protect to the purse, Krezen’s search danger. potential

B (On Rehearing), Power Co v Consumers In Ross (1984), this Court 641 567; 363 NW2d Mich employees, agencies governmental provided officers, immunity with broad including police liability. tort from tort the governmental PA 17521 amended govern- scope of broadly to define

liability act govern- also provides The act immunity.22 ment from tort immunity broad employees mental with liability.23 arising and after causes of action on act is effective as to This

July 1986. Sec. 1. As used this act: expressly (f) activity is an which is "Governmental function" constitution, statute, impliedly mandated or authorized ordinance, other law. charter or

local 23 Sec. 7. Levin, Dissenting Opinion nei impounded,

Before Krezen’s automobile was nor ther the automobile impoundment, police. Absent custody police be no and the would there would bailment of Krezen’s had no for the care responsibility have have been as properly No claim could property. prop for loss or theft against serted the police. that was not erty custody filing open While the courts are both claims, disproportion- valid and invalid would be ate to hold that the law authorizes have no to. impound personal property they duty against unfounded safeguard simply protect safeguarded have claims should suggest It chimerical would be property. or the officers City Rapids Grand damages held for loss or would have been liable or if damage to Krezen’s automobile steps protect to such had not volunteered to take property._ (2) section, Except provided in and without as otherwise this

regard in discretionary to the or ministerial nature conduct question, employee governmental each officer and of a governmental agency, acting on of a each volunteer behalf board, council, commission, agency, and each of a or member statutorily immune from tort property the course governmental agency shall be created task force of a liability injuries persons damages to or to officer, employee, caused or member while acting employment or service or volunteer while governmental agency following on behalf of a if all of the are met: (a) officer, member, employee, acting The or volunteer is or reasonably acting scope believes he or she is within the of his authority. or her (b) governmental agency engaged The or the exercise governmental discharge or a function. (c) officer’s, member’s, employee’s, or conduct volunteer’s gross proximate negligence does not amount cause of the that is the subdivision, injury damage. or As used in this negligence” "gross means conduct so reckless as to demonstrate injury a substantial lack concern for whether an results. (3) (2) altering Subsection shall not be construed as the law of to the effective date of prior intentional subsection torts as it existed (2). 427 Mich Dissenting Opinion Levin, J.

IV justify generally that have concluded Courts something impoundment shown more must be simply otherwise be would the vehicle than left unattended.24 impoundments Kentucky to four Supreme limits Court situations. impound- permissive to the user consents 1. The owner or

ment; vehicle, removed, danger other if not constitutes 2. The safety2 property public the owner or persons permissive of or the arrange reasonably means for alternate user cannot removal; probable that the to believe both have cause 3. The instrumentality of a crime and or fruit constitutes an vehicle that absent moved re- the vehicle will be immediate party; by a third probable to believe both have cause 4. The that absent immediate of a crime and vehicle contains evidence impoundment destroyed. [Wagner lost or the evidence will be Commonwealth, 1979).] (Ky, 581 SW2d danger illegally parked vehicle would constitute An requirement exception public safety and could be to the warrant under this lawfully impounded. Supreme necessary and reason- Court has stated that The Florida impoundments include: able (1) illegally illegally parked or otherwise an unattended car traffic, obstructing tion in the of an accident where the driver is incapable such as mentally incapacitated, situa- illustration of which is the factual (2) case; Opperman an unattended car at the scene mentally physically or deciding steps vehicle what to take to deal with his might seriously injured, occur the driver is when (3) intoxicated; severely an aban- which, (4) vehicle; mechanically vehicle if doned driven, a defective (5) public highway; on the could menace others circumstances; may stolen. be other vehicle identified as this list is not all-inclusive. There 1307, State, 403 So 2d v [Miller (Fla, 1981).] 1313 plain Supreme Virginia Court of West mentioned "valuables impound- sight” ment is lawful: determining as a factor to be considered in whether People 709 Dissenting Levin, generally that, Courts have said even where impoundment might in the circumstances be law- possessor ful, vehicle, the owner or of a if available physically mentally capable, and must be given opportunity a reasonable to make an alter- disposition native of the vehicle before the may impound primary purpose it for the sole or protecting danger, it and the contents from permit disposi- the failure to such alternate impoundment subsequent tion renders an in- ventory search invalid.25_ (1) impoundment vehicle; there was an initial lawful

(2) arrangements the driver wasn’t there to make other at the the (3) impounding safeguarding belongings; time of inventory plain inventory search. for of his prompted by itself was number of valuables (4) car; suggestion view inside the there was no that the pretext conducting investigative search was a Goff, (W 457, Va, 1980).] v 272 460 SE2d [State Slockbower, 1, 4-5; 1050, (1979), In State v 79 NJ 397 A2d 1054-1055 Supreme Jersey the impound Court of New said it would be unreasonable to given an automobile unless the driver consents or is reason- Lunsford, opportunity arrangements. able 655 SW2d to make other In v State 921, (Tenn, 1983), Supreme 922 Court of Tennessee said present, that the must advise a silent arrestee that the automo- impounded provides bile will be unless he reasonable alternatives. See 1979). State, (Tenn, also Drinkard v 584 SW2d 650 25People Nagel, 492, App (1971); Rptr v 17 Cal 3d 95 Cal 129 Virgil Court, Superior 127, App 132-133; Rptr v 268 Cal 2d 73 Cal 793 (1968); Arrington States, 14, (DC App, 1978); v United 382 A2d 18 State, supra; State, 515, 516; App Miller v Strobhert v 165 Ga 301 419 (1983); Velleff, 820, App 823-824; SE2d 681 NE2d 89 v 94 Ill 3d (1981); Kuster, 428, (Iowa, 1984); State v 353 NW2d 432 Estep Commonwealth, 213, Rome, (Ky, 1983); v 663 SW2d 216 State (La, 1978); Goodrich, 506, 507, 509, 354 So 2d 504 511 State v 256 NW2d (Minn, 1977); Slockbower, supra, pp 9-12; State v n 24 Drinkard v State, 650, (Tenn, 1979); State, 584 SW2d Pearson v 649 SW2d (Tex 786, App, 1983); (Tex Smyth State, Civ 634 SW2d 1982) (en App, banc); Houser, 143, 153; Crim P2d 1218 State v 95 Wash 2d (1980)(en banc). Still other courts have said that is unreasonable passenger qualified where a capable assuming or other driver is responsibility contemporaneously for a vehicle with an arrest. State v (1985) Reynoso, App 113; (impoundment Wash 702 P2d 1222 improper vehicle); vehicle, present, willing up pick where owner of Thomason, (1980) App 345; State v 153 Ga 265 SE2d 312 (impoundment request unreasonable where refused for driver’s 427 Mich 681 710 Dissenting Opinion Levin, impoundment Many is courts have said legally ordinarily the vehicle is unlawful where parked parked, particularly if it off-street.26 parked legally in an off- was Krezen’s automobile her arrest. lot at the time of street impoundment is un- It has been said also person is not near arrested lawful where was not near when arrested.27 Krezen automobile arrested. her automobile when McDaniel, vehicle); v 156 NJ husband called come for State to be (1978) 347; (impoundment Super unlawful driver A2d 1174 where 383 parking passenger area and have moved vehicle to a lawful or locked (1976); App, 1976); could it). Bales, App 15 P2d 688 State Wash 552 See also v (Fla Goodrich, State, supra; 335 So Altman v 2d 626 State v (Fla State, App, 1976); v 2d State v 336 So 687 Gunn (Fla (La, 1978); State, Gaut, 348 So 623 357 513 Tolbert v 2d So 2d 1977). (Fla State, App, 1977); App, 2d 809 v 345 So Jones impoundment proper is a where there A few courts found have vehicle, danger visible in a of vandalism theft because valuables surrounding high v has a rate. In State because the area crime (La 1983), Moak, App, impoundment was to be 427 1233 found So 2d truck in its bed be seen inside a reasonable where valuables could although parked gas was in a the truck station. 26 1983) (La Osborn, App, (impoundment 426 323 State So 2d v lot); shopping parked in center Granville unreasonable where vehicle 1977) (Fla State, App, (improper where v 348 So 2d 641 parked driveway was at a in friend’s and defendant arrested vehicle (Ala State, vehicle); v 452 So 1361 Morton 2d safe distance from 1984) parked App, (impoundment Crim unreasonable where vehicle 1976) (Fla 44, station); Wainwright, App, v 325 2d 45 service (impoundment parking lot); (necessity in Weed So improper parked vehicle in store where arrestee’s (1974) State, 19, 38-39; App 327 516 Dixon v 23 Md A2d impounding not where vehicle was vehicle demonstrated Slockbower, public parking arrest); at n 24 lot time of State v supra, pp (impoundment improper 11-13 since vehicle could have been (Okla State, 706, arrest); safely Crim parking Kelly v 607 P2d 708 locked at scene 1980) App, (impoundment improper parked in where vehicle establishment); Thirdgill, App v 46 Or lot of business State (1980) 595, 599-600; (impoundment improper 44 vehi 613 P2d where State, 955, lot); Rodriguez parking v 641 cle was restaurant SW2d (Tex 1982) showing App, (impoundment improper 958 Crim where no illegally parked alley). Similarly v vehicle Pappas, in an see United States (CA 1984) 10, (improper impoundment F2d 1234 club). parked parking lot of where vehicle was (Tex 1980), State, App, In v Crim Benavides 600 SW2d 809 impoundment two more blocks Granville v 1984). improper was found where the defendant was arrested parked away legally his automobile. Cf. from (Iowa, State, Kuster, supra; v n State 353 NW2d Krezen Dissenting Opinion Levin, J. police may have said that Still other courts protect solely an automobile People Miller, 219, 223- 7 Cal 3d contents. In its (1972), Rptr 860; 496 P2d 1228 224; 101 Cal danger Supreme Court said that California equip- leaving electronic defendant’s theft from justify im- in did not ment visible poundment the vehicle parked in a the vehicle was when private State, 687, 689 336 So 2d lot. In Gunn v (Fla 1976), appeals App, that Florida court said a possibility that a vehicle will there is a even where damaged, allowed to assume a driver should be be damage responsibility any for risk and the impounded. vehicle rather than have the Locking leaving a is considered a vehicle disposition where a vehicle reasonable alternative parked; legally State, 623 in v 348 So 2d is (Fla Tolbert 1977), lawfully App, an automobile was where high-crime parked alley area, Florida in in a leaving appeals simply the locked court held have been a reasonable alternative vehicle would impoundment. to proper

Impoundment in was found to have been exceptional circumstances.28 (Tenn, 1982), impoundment Roberge, 642 716 State v SW2d 28 In two drunken was held reasonable where an out-of-state vehicle with pulled highway, underage passenger over on a at men and an night, were rain, strip leaving emergency heavy where the vehicle on placed nearby stop rest would have obstructed traffic or the vehicle (Ala State, danger being hit. In 407 So 2d 870 Crim serious App, Jones 1981), impoundment where the driver ran was found reasonable incoherent, blocking away, passenger and the vehicle was was 216; App private driveway. Greenway, P2d In 15 Wash State (1976), impoundment proper where a driver was was found charge, parked felony arrested on a his vehicle was a restricted to a sewer area where vehicles were removed from time to time due project, incarcerated and the court was concerned that he would be length a considerable of time. for (1982), Callaway, In State v 106 Wis 2d 317 NW2d Supreme impoundment where a Court found reasonable Wisconsin vehicle was Although parking stopped no-parking on-street in a area. Mich 681 Dissenting Opinion by Levin, J. V danger or vandalism because Krez- The of theft purse front seat of her on the en’s was visible justify her did not or of the automobile purse. police had no automobile obligation the safe- themselves with to concern property. keeping so, did When of Krezen’s given of what choice Krezen should have been including leaving it do, where the automobile to impounded. An be officer than for to rather place might her in the trunk to have offered automobile, it had hand it to her after or to her weapons.29 neither for been searched inquired done her wished with what Krezen any purse, nor effort to or her made automobile safekeeping. provide their allow her duty sum, had no or need In protect her either Krezen’s automobile purse or the of the automobile or other contents police were itself. conclude that the automobile We impound or to Krezen’s automobile authorized purse. her

vi state31 We not invoke either federal30 or do the a.m., twenty away, 2 the court decided until some feet allowed pay inability his the vehicle would that the fine meant arrestee’s (Tex State, parked. illegally 703 301 been In Villarreal v SW2d have 1985), App, police been the court decided the would have Crim derelict that street, unpro- duty if a on the in had left vehicle their tected, keys in it a serious with the when defendant was arrested for shortly, unlikely to return offense and was 29 might properly police who asked a officer Because Krezen have place in trunk of automobile made such an offer to her drug paraphernalia appear or brown vial would it does not inevitably been have discovered. 30 Const, US Am IV. 31 1, 1963, Const art 11.§ 713 Dissenting by Levin, on search or seizure constitutional reaching limitations conclusion.32 police question Before one whether reaches limitation, violative of conduct is a constitutional question preliminary is the whether there police by judi- is authorized statute conduct declaring common law of this cial decision police statute, and no are creatures of state. The authority on them the constitu- is conferred under authority no expressly tion of this state. The have except may conferred such be as implication by judicial necessary statute or declaring state. the common law the decision provi- statutory In with the detailed contrast authority spelling of the sions out the statutory authority arrests,33 the others to make nothing per- sparse. is There is search and seize34 taining inventory. judicial decision authorizes or No statute or private empowers police to or seize principle grappling consti It that courts avoid with is a familiar grounds. questions on other See tutional if cause can be decided 288, 341-356; Valley Authority, 297 US S Ashwander Tennessee (1936) (Brandeis, Nowak, J.); Constitutional Law Ct (2d ed), 80 L Ed 688 IV, 7, 93; General, 146, pp Taylor ch 360 Mich Auditor § (1960). 154; 103 NW2d sure, through pursue To be the decisions cited footnotes essentially analysis. expect I result of a This constitutional leadership imposing of the federal courts in limitations on conduct on the basis of the federal constitution before the state courts developed jurisprudence exposition had the state’s structure the absence of a search and seizure in the common, statutory, analysis or constitutional law. The adopted, provided by the federal decisions tended be developed part jurisprudence, state as of state jurisprudence recognition authority without either that police (common might question analyzed of state law to search and seize as a law) law, law, statutory or constitutional or that the limita- imposed by preclude develop- tion ment of state search and seizure tory the Fourth Amendment did not the (common law, jurisprudence statu- law) law, pro- or constitutional that did not authorize conduct by scribed the Fourth Amendment. 764.1-764.24; 33 MCL MSA 28.860-28.883. 28.884-28.884(2). 764.25-764.25b; 34 MCL MSA 427 Mich by Dissenting Levin, J. except

property as the such limitation without impose. or state constitutions federal authority, statutory it becomes the of In absence judicial common-law decision for or a matter impound police to or are authorized the whether particular private property in a case. move clear, considered as a it will In cases be some police question are em- law, that the common act, of powered or a where a disabled vehicle to as represents parked a to users of a hazard vehicle highway, driver is or the owner or or where street properly cannot move intoxicated and or disabled to to consent or or refuse vehicle consent removal, has been vandalized where vehicle or reported stripped In the instant stolen.35 or as or by police the law case, the not authorized were legally impound move Krezen’s to or this state parked automobile.36

VII obligation police Although no to concern had prop- safekeeping Krezen’s themselves with proper entirely erty, for them it would have been affirmatively respond assist, to offer to safeguarding request from, assistance her police property. choose offer Whenever her request respond affirmatively assist, to a or to anticipate examples, no has made to These are effort been compile an exhaustive list. auto not authorized to Krezen’s Since the were mobile, con were not authorized to examine Appeals correctly purse, concluded that of her and the Court of tents the evidence obtained when pressed. sup opened be her should Dixon, 691; (1974), People 222 NW2d 749 In Mich (1984), Sherbine, this 364 NW2d 658 police 421 Mich as result conduct Court held that evidence obtained in violation of suppressed. statutory proscription should be In case, as a would hold evidence obtained instant result law we defining judicial contrary common- decision conduct suppressed. power should by Dissenting Opinion Levin, person from, an arrested in safe- for assistance guarding property, they should advise the ar- his person, so intoxicated or disabled rested unless given advice, on that he will be that he cannot act opportunity station house37to make his an at the arrangements safeguarding property if his own for prefers may so, or that he entrust he do age property person of suitable and condition may accompanying him. In those cases who be by so, to do are authorized law where person police impounding before should advise the arrested moving private property, unless so on that he cannot act intoxicated or disabled property may advice, person accompanying to such a that entrust he or, him if is time to there arrangements prop- before make alternative erty given removed, that he will be must or will opportunity the station house to make his an at safeguarding property arrangements if his own prefers so.38 he to do

VIII question people separately state a do not drug argue in of the the admission evidence paraphernalia and the brown vial found was harmless error. That Krezen’s having argued, issue, is not been briefed us. before

IX opinion, stating The lead the federal oppor may obligation provide that The officer but is under no tunity at the scene of the arrest. State, Commonwealth, supra; Wagner n 24 See Miller v n 24 v Slockbower, Rome, supra; Drinkard Kuster, supra; supra; State v n 24 State v n 25 State, Goodrich, supra; supra; v n 24 State v n 25 State supra. n 25 427 Mich Dissenting Opinion Levin, J. by the not violated constitution inventory relies on Krezen’s automobile Supreme Court States the United decision supra, where, Opperman, in the Dakota South opinion, States United "the lead words lawfully upheld Supreme aof Court (The im- impounded had been vehicle vehicle.” municipal parking ordi- pounded nance.) of a violation stating opinion that continues The lead Opperman] inventory as a care- was seen [in "The investigative taking an than rather function analysis "caretaking” function The search.”39 not, applicable has been a there however, unless impoundment. lawful acknowledging opinion, concurring Opperman did not authorize

South Dakota parked lawfully automobile impoundment of a impeding way any threat- traffic or in that was not appears safety ening public convenience, stating "caretaking” function to the advert reasonably left” not have could "that plain front seat view on the Krezen’s (cid:127) Supreme United States her automobile.40 "caretaking” recognized function Court has except the con- Amendment the Fourth under impoundment; unless the vehicle text of a lawful impounded, lawfully search has been justified on the basis and seizure cannot caretaking eluci- rationale Amendment Fourth Supreme by Here Court. States the United dated impoundment. there no lawful

A acknowledges opinion "[t]he true The lead impoundment of Krez- the initial issue is whether 39Ante, p 684.

40Id., p 698. Dissenting by Levin, en’s car was a constitutional violation.” Reliance is placed Rapids police then on an "unclear”41 Grand departmental opinion policy. The states that while impoundment might constitute an unreasonable seizure and violate the Fourth Amendment in in particular specific situations, factual "the facts impoundment this case render the decision emi- nently reasonable.”42 Cooper California,

Reference is then made to (1967), 58, 62; 386 US 87 S Ct 17 L Ed 2d 730 Supreme said, where the United States Court "[W]e cannot hold unreasonable under the Fourth Amendment the examination or search of a car validly held officers for use as evidence in a proceeding.” (Emphasis supplied.) forfeiture Coo- per, Opperman, upheld inventorying thus, like validly of an automobile that had been seized support and lends no for the conclusion opinion of the lead on the "true issue” of whether the initial of Krezen’s automobile was a constitutional violation. opinion Cady

The lead next refers to v Dom upheld browski, where the Court a search of the Cady, inapposite too, trunk of an automobile. is right, because the had the undoubted as the Supreme United said, States Court to exercise a custody form or control over the vehicle which had been disabled as a result of a one-car accident along highway; and constituted a nuisance respondent intoxicated, was so as the United Supreme carefully States Court noted, that he arrangements could not make to have the vehicle towed and stored.43 opinion

The lead conclusion, then states its inapposite Cady which rests on the decision and 41 Id.,p 685.

42 Id., pp 686. accompanying See n 8 and text. 427 Mich Dissenting Opinion Levin, J. courts, but of which all one

five decisions of other distinguishable. are case, Krez impoundment of

In the instant not unreasonable a warrant was en’s car without prem Cady, not on the per As car se. occurred, and, owner, once the arrest of its ises was possession. longer in actual no the owner’s a "impounding” house without warrant While arrested outside just the defendant was because circumstances, could, under certain house the unreasonable se, Its is a different matter. per a car transportable nonfixed item as a very nature theft or subject more it and its contents makes damage. courts Cady, pp 441-442. A number of of theft or recognized possibility that have impounding a car for is a valid reason vandalism driver, no especially where upon the arrest of the car. present take control person other (CA Staller, v v F2d 1284 United States See, e.g., (CA 9, Scott, United States 5, 1980); 665 F2d 874 Virginia Superintendent, State 1981); Cabbler (CA 4, 1975); State v Penitentiary, 528 F2d Sims, 1983). (La, courts have 426 So 2d 148 Other private leaving parked in a recognized a car that States v nuisance. United may location be a 1986). (CA 4, Brown, impound 787 F2d 929 caretaking than an function rather ment was investigative one, according to standard instituted protect the defendant and departmental policy thefts, recriminations, unnecessary police from the and civil suits.[44] impound- opinion The lead thus would hold justified on the ment of Krezen’s automobile was possibility of theft or vandalism is "that the bases impounding upon a car a valid reason parked "leaving a car of the driver” or arrest in a only may private location be a nuisance.” allowing support might case cited which be said 44Ante, pp 687-688. Krezen Dissenting Opinion by Levin, impoundment on those is United States v leases supra,

Staller, 1290, where the Court held an reasonable where the automobile legally parked parking lot; was ables were parked overnight a mall no valu- felt that "a car

visible but parking in a mall lot runs an appreciable risk of vandalism or theft.” support

The other four cases cited do not propositions opinion. advanced in the lead automobile locked nor the windows closed to United States v Scott could not be

safeguard treasury contents. A United States check was safekeeping. removed dant had The defen- property although

failed secure his he had assured the that he had done so. Krezen given option was not secure her automobile. Superintendent In Cabbler v the automobile was parked hospital emergency driveway in a when Clearly, the driver was arrested. an automobile in hospital distinguishable emergency driveway automobile, Krezen’s, from an legally such as that was parked airport parking in an lot.

While the Court State v Sims noted that might possibly vandalized, automobile have been also was stated that an officer was concerned that the automobile was

obstructing view drivers turning highway. was, onto a Krezen’s automobile again, parked legally obstructing and not Supreme Further, views of drivers. Court Louisiana considers as a factor whether the driver was asked if he consented to a

search, if the valuables, automobile contained ifor he had con- protection sented to the failure to afford him the of an search.45 pulled

In United States v Brown driver had Hardy, Id. at (La, State v State v 1980); 384 So 2d 432 Killcrease, LaRue, (La, 1980); State v 379 So 2d 737 368 So 2d 1048 1979). (La, 427 Mich Dissenting Levin, J. parking said it was The court lot; a

into small it because the automobile to reasonable present it remained there nuisance if would longer. day Krezen’s automobile or until the next serving nearby parked in a lot small was businesses and park- airport apartments, in an but ing lot.

B opinion distinguish Fourth does not The lead represent decisions, the clear which Amendment stating person weight authority,46 iswho that a leaving option given must be arrested legally parked is, when where even automobile "caretaking” rationale visible. valuables are person inapposite impoundment when is for safeguard does not desire arrested responsibility accepts person’s property for possible losses. safeguarding-visible-valuables rationale

If the might adopted, be made an effort to be were impoundment of allow extend that rationale sys- expensive car stereo that contain automobiles expensive telephones, If tems, or other accessories. property factor, that rationale is a the value of the might justify be extended automobiles. all late-model have Krezen automobile could not Since the impounded arrest, I fail as an incident to her been automobile see the between Krezen’s difference parked days for several and an automobile in an is airport parking who is not lot a citizen persons leave their automobiles arrested—some airport parking weeks, week, or at over a several airport parking Suppose who attendants lots. parked periodically for ex- check automobiles seq., accompanying text. See n et Dissenting Opinion by Levin, J. periods plain tended of time observe valuables view. No one has been arrested. The automobile legally parked. obligation Do have the or right police; to call the do the have the obligation right to enter the automobile and "safeguard” the valuables? not. Of course On what obligation basis then do the have that right authority in the instant case? If it be said gave that here Krezen was arrested and that that "caretaking” responsibility safety rise to a for the again property, her of it would once be relevant "caretaking” developed that the was in rationale respect impounded lawfully to automobiles. again police

It also is relevant that the have no duty subject liability, civil and are not to under failing safeguard property.47 Ross, for a citizen’s

c concurring opinion The states that while im- poundment improper, of the automobile was the purse proper because the police reasonably could not have left it there in plain expected view, and could not be to hand it to (presumably might Krezen weapon) because it contain a checking upon contents,

without the checking they the contents would have found the opinion suggests applies The lead that until this Court in Ross Supreme this context and the United States Court further construes 1983, [by police] hardly USC "the asserted fear of civil suit was 7.) (Ante, p unreasonable.” n has, however, Supreme yet The United States Court to hold that police justifies unfounded fear of civil suit a search or seizure under opinion implicitly the Fourth Amendment. The lead decides neverthe- justified less that a search or seizure is under the Fourth Amendment police regard on the basis fear of civil suit without to whether that correctly opinion fear is founded in law. Since the lead would so question decide the Fourth Amendment States Appeals not decided the United Court, should, Supreme it to the extent Court of reversal of the predicated rationale, on the fear of civil suit first also questions address the state and federal law that it states are still open. 427 Mich Levin, Dissenting Opinion Assuming

incriminating for the moment evidence. obligation right police have that property, safeguard another there was Krezen’s police ob- demanded and had The alternative. purse keys could her automobile. tained put for the automobile the trunk of in have been safekeeping. property. purse her It was was Krezen’s seeking they

property were assert that Assuming protect. had some to obligation safeguarding respect right plain view, would it was because asking obligation by discharged her if have (running plain it view to leave there she wished theft), placed trunk, in the have it risk of or to it had been to her after it returned or to have Having weapons. are in mind that we searched talking property, safeguarding she Krezen’s about given options. The clear been those have should persons weight authority should is that arrested having option given "safe- leaving guard” property at risk. their Appeals. affirm the Court We would Cavanagh JJ., Archer, with concurred Levin,

Case Details

Case Name: People v. Krezen

Court Name: Michigan Supreme Court

Date Published: Dec 30, 1986

Citation: 397 N.W.2d 803

Docket Number: 76631, (Calendar No. 6)

Court Abbreviation: Mich.