# South Dakota v. Opperman/Dissent Marshall

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Powell
* Dissenting Opinions Marshall White
MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN and MR. JUSTICE STEWART join, dissenting.
The Court today holds that the Fourth Amendment permits a routine police inventory search of the closed [p385] glove compartment of a locked automobile impounded for ordinary traffic violations. Under the Court's holding, such a search may be made without attempting to secure the consent of the owner and without any particular reason to believe the impounded automobile contains contraband, evidence, or valuables, or presents any danger to its custodians or the public. Because I believe this holding to be contrary to sound elaboration of established Fourth Amendment principles, I dissent.
As MR. JUSTICE POWELL recognizes, the requirement of a warrant aside, resolution of the question whether an inventory search of closed compartments inside a locked automobile can ever be justified as a constitutionally "reasonable" search depends upon a reconciliation of the owner's constitutionally protected privacy interests against governmental intrusion, and legitimate governmental interests furthered by securing the car and its contents. Terry v. Ohio, 392 U.S. 1, 20-21 (1968); Camara v. Municipal Court, 387 U.S. 523, 534-535, 536-537 (1967). The Court fails clearly to articulate the reasons for its reconciliation of these interests in this case, but it is at least clear to me that the considerations [p386] alluded to by the Court, and further discussed by MR. JUSTICE POWELL, are insufficient to justify the Court's result in this case.
To begin with, the Court appears to suggest by reference to a "diminished" expectation of privacy, ante at 368, that a person's constitutional interest in protecting the integrity of closed compartments of his locked automobile may routinely be sacrificed to governmental interests requiring interference with that privacy that are less compelling than would be necessary to justify a search of similar scope of the person's home or office. This has never been the law. The Court correctly observes that some prior cases have drawn distinctions between automobiles and homes or offices in Fourth Amendment cases; but even as the Court's discussion makes clear, the reasons for distinction in those cases are not present here. Thus, Chambers v. Maroney, 399 U.S. 42 (1970), and Carroll v. United States, 267 U.S. 132 (1925), permitted certain probable cause searches to be carried out without warrants in view of the exigencies created by the mobility of automobiles, but both decisions reaffirmed that the standard of probable cause necessary to authorize such a search was no less than the standard applicable to search of a home or office. Chambers, supra at 51; Carroll, supra at 155-156. In other contexts, the Court has recognized that automobile travel sacrifices some privacy interests to the publicity of plain view, e.g., Cardwell v. Lewis, 417 U.S. 583, 590 (1974) (plurality opinion); cf. Harris v. United States, 390 U.S. 234 (1968). But this recognition, too, is inapposite here, for there is no question of plain view in [p387] this case. Nor does this case concern intrusions of the scope that the Court apparently assumes would ordinarily be permissible in order to insure the running safety of a car. While it may be that privacy expectations associated with automobile travel are in some regards less than those associated with a home or office, see United States v. Martinez-Fuerte, post at 561-52, it is equally clear that "[t]he word ‘automobile' is not a talisman in whose presence the Fourth Amendment fades away . . . ," Coolidge v. New Hampshire, 403 U.S. 443, [p388] 461 (1971). [n5] Thus, we have recognized that "[a] search, even of an automobile, is a substantial invasion of privacy," United States v. Ortiz, 422 U.S. 891, 896 (1975) (emphasis added), and, accordingly, our cases have consistently recognized that the nature and substantiality of interest required to justify a search of private areas of an automobile is no less than that necessary to justify an intrusion of similar scope into a home or office. See, e.g., United States v. Ortiz, supra; Almeida-Sanchez v. United States, 413 U.S. 266, 269-270 (1973); Coolidge, supra; Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 221-222 (1968); Preston v. United States, 376 U.S. 364 (1964). [p389]
The Court's opinion appears to suggest that its result may, in any event, be justified because the inventory search procedure is a "reasonable" response to
    three distinct needs: the protection of the owner's property while it remains in police custody . . . ; the protection of the police against claims or disputes over lost or stolen property . . . ; and the protection of the police from potential danger.
Ante at 369. This suggestion is flagrantly misleading, however, because the record of this case explicitly belies any relevance of the last two concerns. In any event, it is my view that none of these "needs," separately or together, can suffice to justify the inventory search procedure approved by the Court.
First, this search cannot be justified in any way as a safety measure, for -- though the Court ignores it -- the sole purpose given by the State for the Vermillion police's inventory procedure was to secure valuables, Record 75, 98. Nor is there any indication that the officer's search in this case was tailored in any way to safety concerns, or that ordinarily it is so circumscribed. Even aside from the actual basis for the police practice in this case, however, I do not believe that any blanket safety argument could justify a program of routine [p390] searches of the scope permitted here. As MR. JUSTICE POWELL recognizes, ordinarily "there is little danger associated with impounding unsearched automobiles," ante at 378. Thus, while the safety rationale may not be entirely discounted when it is actually relied upon, it surely cannot justify the search of every car upon the basis of undifferentiated possibility of harm; on the contrary, such an intrusion could ordinarily be justified only in those individual cases where the officer's inspection was prompted by specific circumstances indicating the possibility [p391] of a particular danger. See Terry v. Ohio, 392 U.S. at 21, 27; cf. Cady v. Dombrowski, 413 U.S. 433, 448 (1973)
Second, the Court suggests that the search for valuables in the closed glove compartment might be justified as a measure to protect the police against lost property claims. Again, this suggestion is belied by the record, since -- although the Court declines to discuss it -- the South Dakota Supreme Court's interpretation of state law explicitly absolves the police, as "gratuitous depositors," from any obligation beyond inventorying objects in plain view and locking the car. 89 S.D. ___, 228 N.W.2d 152, 159 (1975). Moreover, as MR. JUSTICE POWELL notes, ante at 378-379, it may well be doubted that an inventory procedure would, in any event, work significantly to minimize the frustrations of false claims.
Finally, the Court suggests that the public interest in protecting valuables that may be found inside a closed compartment of an impounded car may justify the inventory procedure. I recognize the genuineness of this governmental interest in protecting property from pilferage. But even if I assume that the posting of a guard would be fiscally impossible as an alternative means to [p392] the same protective end, I cannot agree with the Court's conclusion. The Court's result authorizes -- indeed it appears to require -- the routine search of nearly every car impounded. In my view, the Constitution does not permit such searches as a matter of routine; absent specific consent, such a search is permissible only in exceptional circumstances of particular necessity.
It is at least clear that any owner might prohibit the police from executing a protective search of his impounded car, since, by hypothesis, the inventory is conducted for the owner's benefit. Moreover, it is obvious that not everyone whose car is impounded would want it to be searched. Respondent himself proves this; but [p393] one need not carry contraband to prefer that the police not examine one's private possessions. Indeed, that preference is the premise of the Fourth Amendment. Nevertheless, according to the Court's result, the law may presume that each owner in respondent's position consents to the search. I cannot agree. In my view, the Court's approach is squarely contrary to the law of consent; it ignores the duty, in the absence of consent, to analyze in each individual case whether there is a need to search a particular car for the protection of its owner which is sufficient to outweigh the particular invasion. It is clear to me under established principles that, in order to override the absence of explicit consent, such a search must at least be conditioned upon the fulfillment of two requirements. First, there must be specific cause to believe that a search of the scope to be undertaken is necessary in order to preserve the integrity of particular valuable property threatened by the impoundment:
    [I]n justifying the particular intrusion, the police officer must be able to point to specific and articulable facts which . . reasonably warrant that intrusion.
Terry v. Ohio, 392 U.S. at 21. Such a requirement of
    specificity in the information upon which police action is predicated is the central teaching of this Court's Fourth Amendment jurisprudence,
id. at 21 n. 18, for
    [t]he basic purpose of this [p394] Amendment, as recognized in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.
Camara v. Municipal Court, 387 U.S. at 528. Cf. United States v. Brignoni-Ponce, 422 U.S. 873, 883-884 (1975); Cady v. Dombrowski, 413 U.S. at 448; Terry v. Ohio, supra at 27. Second, even where a search might be appropriate, such an intrusion may only follow the exhaustion and failure of reasonable efforts under the circumstances to identify and reach the owner of the property in order to facilitate alternative means of security or to obtain his consent to the search, for in this context the right to refuse the search remains with the owner. Cf. Bumper v. North Carolina, 391 U.S. 543 (1968).
Because the record in this case shows that the procedures followed by the Vermillion police in searching respondent's car fall far short of these standards, in my view, the search was impermissible, and its fruits must be suppressed. First, so far as the record shows, the police in this case had no reason to believe that the glove compartment of the impounded car contained particular property of any substantial value. Moreover, the owner had apparently thought it adequate to protect whatever he left in the car overnight on the street in a business area simply to lock the car, and there is nothing in the record to show that the impoundment [p395] lot would prove a less secure location against pilferage, cf. Mozzetti v. Superior Court, 4 Cal.2d 699, 707, 484 P.2d 84, 89 (1971), particularly when it would seem likely that the owner would claim his car and its contents promptly, at least if it contained valuables worth protecting. Even if the police had cause to believe that the impounded car's glove compartment contained particular valuables, however, they made no effort to secure the owner's consent to the search. Although the Court relies, as it must, upon the fact that respondent was not present to make other arrangements for the care of his belongings, ante at 375, in my view, that is not the end of the inquiry. Here, the police readily ascertained the ownership of the vehicle, Record 98-99, yet they searched it immediately without taking any steps to locate respondent and procure his consent to the inventory or advise him to make alternative arrangements to safeguard his property, id. at 32, 72, 73, 79. Such a failure is inconsistent with the rationale that the inventory procedure is carried out for the benefit of the owner.
The Court's result in this case elevates the conservation of property interests -- indeed mere possibilities of property interests -- above the privacy and security interests [p396] protected by the Fourth Amendment. For this reason, I dissent. On the remand, it should be clear in any event that this Court's holding does not preclude a contrary resolution of this case or others involving the same issues under any applicable state law. See Oregon v. Hass, 420 U.S. 714, 726 (1975) (MARSHALL, J., dissenting).

## Notes

↑ . The Court does not consider, however, whether the police might open and search the glove compartment if it is locked, or whether the police might search a locked trunk or other compartment.
↑ . I agree with MR. JUSTICE POWELL's conclusion, ante at 377 n. 1, that, as petitioner conceded, Tr. of Oral Arg. 5, the examination of the closed glove compartment in this case is a "search." See Camara v. Municipal Court, 387 U.S. 523, 530 (1967):
    It is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior.
See also Cooper v. California, 386 U.S. 58, 61 (1967), quoted in n. 5, infra. Indeed, the Court recognized in Harris v. United States, 390 U.S. 234, 236 (1968), that the procedure invoked here would constitute a search for Fourth Amendment purposes.
↑ . This is, of course, "probable cause in the sense of specific knowledge about a particular automobile." Almeida-Sanchez v. United States, 413 U.S. 266, 281 (1973) (POWELL, J., concurring).
↑ . In its opinion below, the Supreme Court of South Dakota stated that, in its view, the police were constitutionally justified in entering the car to remove, list, and secure objects in plain view from the outside of the car. 89 S.D. ___, ___, 228 N.W.2d 152, 158-159 (1975). This issue is not presented on certiorari here.
Contrary to the Court's assertion, however, ante at 375-376, the search of respondent's car was not in any way "prompted by the presence in plain view of a number of valuables inside the car." In fact, the record plainly states that every vehicle taken to the city impound lot was inventoried, Record 33, 74, 75, and that, as a matter of "standard procedure," "every inventory search" would involve entry into the car's closed glove compartment. Id. at 43, 44. See also Tr. of Oral Arg. 7. In any case, as MR. JUSTICE POWELL recognizes, ante at 377-378, n. 2, entry to remove plain view articles from the car could not justify a further search into the car's closed areas. Cf. Chimel v. California, 395 U.S. 752, 763, 764-768 (1969). Despite the Court's confusion on this point -- further reflected by its discussion of Mozzetti v. Superior Court, 4 Cal.3d 699, 484 P.2d 84 (1971), ante at 371, and its reliance on state and lower federal court cases approving nothing more than inventorying of plain view items, e.g., Barker v. Johnson, 484 F.2d 941 (CA6 1973); United States v. Mitchell, 458 F.2d 960' (CA9 1972); United States v. Fuller, 277 F.Supp. 97 (DC 1967), conviction aff'd, 139 U.S.App.D.C. 375, 433 F.2d 533 (1970); State v. Tully, 166 Conn.126, 348 A.2d 603 (1974); State v. Achter, 512 S.W.2d 894 (Mo.Ct.App. 1974); State v. All, 17 N.C.App. 284, 193 S.E.2d 770, cert. denied, 414 U.S. 866 (1973) -- I must conclude that the Court's holding also permits the intrusion into a car and its console even in the absence of articles in plain view.
↑ . Moreover, as the Court observed in Cooper v. California, supra at 61: "‘[L]awful custody of an automobile does not, of itself, dispense with constitutional requirements of searches thereafter made of it.'"
↑ . It would be wholly unrealistic to say that there is no reasonable and actual expectation in maintaining the privacy of closed compartments of a locked automobile when it is customary for people in this day to carry their most personal and private papers and effects in their automobiles from time to time. Cf. Katz v. United States, 389 U.S. 347, 352 (1967) (opinion of the Court); id. at 361 (Harlan, J., concurring). Indeed, this fact is implicit in the very basis of the Court's holding -- that such compartments may contain valuables in need of safeguarding.
MR. JUSTICE POWELL observes, ante at 380, and n. 7, that the police would not be justified in sifting through papers secured under the procedure employed here. I agree with this, and I note that the Court's opinion does not authorize the inspection of suitcases, boxes, or other containers which might themselves be sealed, removed, and secured without further intrusion. See, e.g., United States v.Lawson, 487 F.2d 468 (CA8 1973); State v. McDougal, 68 Wis.2d 399, 228 N.W.2d 671 (1975); Mozzetti v. Superior Court, supra. But this limitation does not remedy the Fourth Amendment intrusion when the simple inventorying of closed areas discloses tokens, literature, medicines, or other things which on their face may "reveal much about a person's activities, associations, and beliefs," California Bankers Assn. v. Shultz, 416 U.S. 21, 78-79 (1974) (POWELL, J., concurring).
↑ . The Court also observes that, "[i]n addition, police frequently attempt to determine whether a vehicle has been stolen and thereafter abandoned." Ante at 369. The Court places no reliance on this concern in this case, however, nor could it. There is no suggestion that the police suspected that respondent's car was stolen, or that their search was directed at, or stopped with, a determination of the car's ownership. Indeed, although the police readily identified the car as respondent's, Record 98-99, the record does not show that they ever sought to contact him.
↑ . The very premise of the State's chief argument, that the cars must be searched in order to protect valuables because no guard is posted around the vehicles, itself belies the argument that they must be searched at the city lot in order to protect the police there. These circumstances alone suffice to distinguish the dicta from Cooper v. California, 386 U.S. at 61-62, recited by the Court, ante at 373.
The Court suggests a further "crucial" justification for the search in this case: "protection of the public from vandals who might find a firearm, Cady v. Dombrowski, [413 U.S. 433 (1973)], or as here, contraband drugs" (emphasis added). Ante at 376 n. 10. This rationale, too, is absolutely without support in this record. There is simply no indication the police were looking for dangerous items. Indeed, even though the police found shotgun shells in the interior of the car, they never opened the trunk to determine whether it might contain a shotgun. Cf. Cady, supra. Aside from this, the suggestion is simply untenable as a matter of law. If this asserted rationale justifies search of all impounded automobiles, it must logically also justify the search of all automobiles, whether impounded or not, located in a similar area, for the argument is not based upon the custodial role of the police. See also Cooper v. California, supra at 61, quoted in n. 5, supra. But this Court has never permitted the search of any car or home on the mere undifferentiated assumption that it might be vandalized and the vandals might find dangerous weapons or substances. Certainly Cady v. Dombrowski, permitting a limited search of a wrecked automobile where, inter alia, the police had a reasonable belief that the car contained a specific firearm, 413 U.S. at 448, does not so hold.
↑ . Even were the State to impose a higher standard of custodial responsibility upon the police, however, it is equally clear that such a requirement must be read in light of the Fourth Amendment's preeminence to require protective measures other than interior examination of closed areas.
↑ . Indeed, if such claims can be deterred at all, they might more effectively be deterred by sealing the doors and trunk of the car, so that an unbroken seal would certify that the car had not been opened during custody. See Cabbler v. Superintendent, 374 F.Supp. 690, 700 (ED Va.1974), rev'd, 528 F.2d 1142 (CA4 1975), cert. pending, No. 75-1463.
↑ . I do not believe, however, that the Court is entitled to make this assumption, there being no such indication in the record. Cf. Cady v. Dombrowski, supra at 447.
↑ . The Court makes clear, ante at 375, that the police may not proceed to search an impounded car if the owner is able to make other arrangements for the safekeeping of his belongings. Additionally, while the Court does not require consent before a search, it does not hold that the police may proceed with such a search in the face of the owner's denial of permission. In my view, if the owner of the vehicle is in police custody or otherwise in communication with the police, his consent to the inventory is prerequisite to an inventory search. See Cabbler v. Superintendent, supra at 700; cf. State v. McDougal, 68 Wis.2d at 413, 228 N.W.2d at 678; Mozzetti v. Superior Court, 4 Cal.3d at 708, 484 P.2d at 89.
↑ . In so requiring, the Court appears to recognize that a search of some, but not all, cars which there is no specific cause to believe contain valuables would itself belie any asserted property-securing purpose.
The Court makes much of the fact that the search here was a routine procedure, and attempts to analogize Cady v. Dombrowski. But it is quite clear that the routine in Cady was only to search where there was a reasonable belief that the car contained a dangerous weapon, 413 U.S. at 443; see Dombrowski v. Cady, 319 F.Supp. 530, 532 (ED Wis.1970), not, as here, to search every car in custody without particular cause.
↑ . Even if it may be true that many persons would ordinarily consent to a protective inventory of their car upon its impoundment, this fact is not dispositive since even a majority lacks authority to consent to the search of all cars in order to assure the search of theirs. Cf. United States v. Matlock, 415 U.S. 164, 171 (1974); Stoner v. California, 376 U.S. 483 (1964).
↑ . I need not consider here whether a warrant would be required in such a case.
↑ . Additionally, although not relevant on this record, since the inventory procedure is premised upon benefit to the owner, it cannot be executed in any case in which there is reason to believe the owner would prefer to forgo it. This principle, which is fully consistent with the Court's result today, requires, for example, that, when the police harbor suspicions (amounting to less than probable cause) that evidence or contraband may be found inside the automobile, they may not inventory it, for they must presume that the owner would refuse to permit the search.
↑ . While evidence at the suppression hearing suggested that the inventory procedures were prompted by past thefts at the impound lot, the testimony refers to only two such thefts, see ante at 366 n. 1, over an undisclosed period of time. There is no reason on this record to believe that the likelihood of pilferage at the lot was higher or lower than that on the street where respondent left his car with valuables in plain view inside. Moreover, the failure of the police to secure such frequently stolen items as the car's battery, suggests that the risk of loss from the impoundment was not, in fact, thought severe.
↑ . In fact respondent claimed his possessions about five hours after his car was removed from the street. Record 39, 93.