State v. BrownState v. Brown
The defendant seeks to suppress evidence seized from his motor vehicle following his arrest for DUI. The facts are uncomplicated.
The defendant was driving his Ford pickup truck north on State Route 45 in the village of Orwell at approximately 2:35 a.m. on December 4, 1994. Officer Michael Roach of the Orwell Village Police Department observed the defendant weaving, crossing left of the center yellow line twice. When the officer activated his pursuit lights, the defendant immediately veered to the right, pulling halfway off the road. As the officer approached the defendant’s vehicle, he saw the defendant fumbling with something in the center of the vehicle near the floor area. Standing within two feet of the driver-side window, the officer could smell an odor of alcoholic beverage. While talking with the defendant, he observed the defendant’s arm under a windbreaker on the front seat of the vehicle. After the defendant produced his operator’s license, the officer required him to get out of the vehicle. The defendant was first given a portable breath test, which indicated an alcohol concentration in excess of .05. The officer next administered a horizontal gaze nystagmus test, which the officer interpreted as evidence that the defendant was under the influence of alcohol. The officer further observed that the defendant’s eyes were red and bloodshot. In addition, the officer put the defendant through certain balance tests, which were not performed satisfactorily. At that point, the defendant was placed under arrest for operating a motor vehicle while under the influence of alcohol and was handcuffed behind his back. The officer then conducted a search of the defendant’s person, finding twenty-six rounds of 9mm ammunition in the defendant’s pocket. He asked the defendant if he had a gun in the truck, to which the defendant said no. The defendant was then placed in the back seat of the police cruiser.
The defendant was transported to the Orwell Police Department, where he submitted to an Intoxilizer test, indicating a breath-alcohol level of .069. After the Intoxilizer test, the defendant was read his Miranda warnings.
The defendant denies that he was weaving or that he crossed the center line, and that the officer ever asked him if there was a gun in the truck. He admits that the loaded pistol was under the windbreaker on the seat and that an additional magazine for the gun was in the truck. He further testified that the officer found the twenty-six additional rounds of ammunition in the truck and not in the defendant’s pocket.
Once the defendant, the sole occupant of the vehicle, was removed from the vehicle, handcuffed behind his back, and placed in the police cruiser, the officer had no basis to search the vehicle as an incident to the defendant’s arrest. State v. Brown (1992),
Locating twenty-six rounds of ammunition in the defendant’s pocket would create a reasonable inference that a weapon is nearby. However, it is not illegal to transport firearms in a motor vehicle, provided that it is done in accordance with law. Since the defendant was already handcuffed at the time the officer stated he discovered the bullets, the mere presence of the ammunition would not alter the basis on which the officer would be authorized to search the defendant’s vehicle.
The arresting officer in this case testified that the search of the defendant’s vehicle was an inventory search prior to impounding the vehicle. He further stated that his inventory was in accordance with the policy of the Orwell Police Department. Following the defendant’s arrest for DUI, with no one else available to take charge of his truck, it was reasonable to impound the vehicle.
When a vehicle is impounded, the police may conduct a valid inventory search of the vehicle, without a warrant, provided that it is conducted in good faith and in accordance with reasonable, standardized procedures or established routine. State v. Hathman (1992),
Nevertheless, a claimed inventory search will not be upheld in the absence of a policy or practice designed to produce an inventory. Florida v. Wells (1990),
Although a written inventory policy would seem logical and desirable, the courts have not required that a police department’s policy governing inventory searches be in writing. Still, there should be evidence that a policy actually exists and that officers who conduct inventories are familiar with the requirements of the policy. A valid inventory policy should identify the circumstances when an inventory will be done, the extent of the search, and the procedures to be followed. It should also be demonstrated that the requirements of the policy are consistently followed, to assure that the inventory is not being used as a pretext to search.
In State v. Swilley (May 19, 1994), Franklin App. No. 93APA11-1551, unreported,
On the state of the record it is impossible for the court to determine whether the Orwell Village Police Department has a reasonable, standardized procedure or established routine for conducting inventory searches, or whether the arresting officer in this case complied with the policy. In the absence of a search warrant, it is incumbent upon the state to elucidate the facts or circumstances which justify governmental interference with the basic liberty of a citizen.
In the absence of facts upon which the court can determine that a valid inventory search was made, the only remaining reason for the search would be a pretext to look for weapons. Obviously, such a reason does not satisfy constitutional requirements.
IT IS SO ORDERED.
Motion granted.