# South Dakota v. Opperman/Concurrence Powell

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Powell
* Dissenting Opinions Marshall White
MR. JUSTICE POWELL, concurring.
While I join the opinion of the Court, I add this opinion to express additional views as to why the search conducted in this case is valid under the Fourth and Fourteenth Amendments. This inquiry involves two distinct questions: (i) whether routine inventory searches are impermissible, and (ii) if not, whether they must be conducted pursuant to a warrant. [p377]

### I

The central purpose of the Fourth Amendment is to safeguard the privacy and security of individuals against arbitrary invasions by government officials. See, e.g., United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975); Camara v. Municipal Court, 387 U.S. 523, 528 (1967). None of our prior decisions is dispositive of the issue whether the Amendment permits routine inventory "searches" Of automobiles. Resolution of this [p378] question requires a weighing of the governmental and societal interests advanced to justify such intrusions against the constitutionally protected interest of the individual citizen in the privacy of his effects. United States v. Martinez-Fuerte, post at 555; United States v. Brignoni-Ponce, supra at 878-879; United States v. Ortiz, 422 U.S. 891, 892 (1975); Cady v. Dombrowski, 413 U.S. 433, 447 8 (1973); Terry v. Ohio, 392 U.S. 1, 20-21 (1968). Cf. Camara v. Municipal Court, supra at 534-535. As noted in the Court's opinion, see ante at 369, three interests generally have been advanced in support of inventory searches: (i) protection of the police from danger; (ii) protection of the police against claims and disputes over lost or stolen property; and (iii) protection of the owner's property while it remains in police custody.
Except in rare cases, there is little danger associated with impounding unsearched automobiles. But the occasional danger that may exist cannot be discounted entirely. See Cooper v. California, 386 U.S. 58, 61-62 (1967). The harmful consequences in those rare cases may be great, and there does not appear to be any effective way of identifying in advance those circumstances or classes of automobile impoundments which represent a greater risk. Society also has an important interest in minimizing the number of false claims filed against police, since they may diminish the community's respect for law enforcement generally and lower department morale, thereby impairing the effectiveness of the police. It [p379] is not clear, however, that inventories are a completely effective means of discouraging false claims, since there remains the possibility of accompanying such claims with an assertion that an item was stolen prior to the inventory or was intentionally omitted from the police records.
The protection of the owner's property is a significant interest for both the policeman and the citizen. It is argued that an inventory is not necessary, since locked doors and rolled-up windows afford the same protection that the contents of a parked automobile normally enjoy. But many owners might leave valuables in their automobile temporarily that they would not leave there unattended for the several days that police custody may last. There is thus a substantial gain in security if automobiles are inventoried and valuable items removed for storage. And, while the same security could be attained by posting a guard at the storage lot, that alternative may be prohibitively expensive, especially for smaller jurisdictions.
Against these interests must be weighed the citizen's interest in the privacy of the contents of his automobile. Although the expectation of privacy in an automobile is significantly less than the traditional expectation of privacy associated with the home, United States v. Martinez-Fuerte, post at 561-562; United States v. Ortiz, supra at 896 n. 2; see Cardwell v. Lewis, 417 U.S. 583, 590-591 (1974) (plurality opinion), the unrestrained search [p380] of an automobile and its contents would constitute a serious intrusion upon the privacy of the individual in many circumstances. But such a search is not at issue in this case. As the Court's opinion emphasizes, the search here was limited to an inventory of the unoccupied automobile, and was conducted strictly in accord with the regulations of the Vermillion Police Department. Upholding searches of this type provides no general license for the police to examine all the contents of such automobiles.
I agree with the Court that the Constitution permits routine inventory searches, and turn next to the question whether they must be conducted pursuant to a warrant. [p381]

### II

While the Fourth Amendment speaks broadly in terms of "unreasonable searches and seizures," the decisions of this Court have recognized that the definition of "reasonableness" turns, at least in part, on the more specific dictates of the Warrant Clause. See United States v. United States District Court, 407 U.S. 297, 315 (1972); Katz v. United States, 389 U.S. 347, 356 (1967); Camara v. Municipal Court, 387 U.S. at 528. As the Court explained in Katz v. United States, supra at 357,
    [s]earches conducted without warrants have been held unlawful "notwithstanding facts unquestionably showing probable cause," Agnello v. United States, 269 U.S. 20, 33, for the Constitution requires "that the deliberate, impartial judgment of a judicial officer . . . be interposed between the citizen and the police. . . ." Wong Sun v. United States, 371 U.S. 471, 481-482.
Thus, although
    [s]ome have argued that "[t]he relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable," United States v. Rabinowitz, 339 U.S. 56, 66 (1950),
"[t]his view has not been accepted." United States v. United States District Court, supra at 315, and n. 16. See Chimel v. California, 395 U.S. 752 (1969). Except in a few carefully defined classes of cases, a search of private property without valid consent is "unreasonable" unless it has been authorized by a valid search warrant. See, e.g., Almeida-Sanchez v. United States, 413 U.S. 266, 269 (1973); Stoner v. California, 376 U.S. 483, 486 (1964); [p382] Camara v. Municipal Court, supra at 528; United States v. Jeffers, 342 U.S. 48, 51 (1951); Agnello v. United States, 269 U.S. 20, 30 (1925).
Although the Court has validated warrantless searches of automobiles in circumstances that would not justify a search of a home or office, Cady v. Dombrowski, 413 U.S. 433 (1973); Chambers v. Maroney, 399 U.S. 42 (1970); Carroll v. United States, 267 U.S. 132 (1925), these decisions establish no general "automobile exception" to the warrant requirement. See Preston v. United States, 376 U.S. 364 (1964). Rather, they demonstrate that, "‘for the purposes of the Fourth Amendment, there is a constitutional difference between houses and cars,'" Cady v. Dombrowski, supra at 439, quoting Chambers v. Maroney, supra at 52, a difference that may, in some cases, justify a warrantless search.
The routine inventory search under consideration in this case does not fall within any of the established exceptions to the warrant requirement. But examination of the interests which are protected when searches are [p383] conditioned on warrants issued by a judicial officer reveals that none of these is implicated here. A warrant may issue only upon "probable cause." In the criminal context, the requirement of a warrant protects the individual's legitimate expectation of privacy against the overzealous police officer.
    Its protection consists in requiring that those inferences [concerning probable cause] be drawn by a neutral and detached magistrate, instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.
Johnson v. United States, 333 U.S. 10, 14 (1948). See, e.g., United States v. United States District Court, supra at 316-318. Inventory searches, however, are not conducted in order to discover evidence of crime. The officer does not make a discretionary determination to search based on a judgment that certain conditions are present. Inventory searches are conducted in accordance with established police department rules or policy, and occur whenever an automobile is seized. There are thus no special facts for a neutral magistrate to evaluate.
A related purpose of the warrant requirement is to prevent hindsight from affecting the evaluation of the reasonableness of a search. See United States v. Martinez-Fuerte, post at 565; cf. United States v. Watson, 423 U.S. 411, 455 n. 22 (1976) (MARSHALL, J., dissenting). In the case of an inventory search conducted in accordance with standard police department procedures, there is no significant danger of hindsight justification. The absence of a warrant will not impair the effectiveness of post-search review of the reasonableness of a particular inventory search.
Warrants also have been required outside the context of a criminal investigation. In Camara v. Municipal Court, the Court held that, absent consent, a warrant was necessary to conduct an area-wide building code inspection, [p384] even though the search could be made absent cause to believe that there were violations in the particular buildings being searched. In requiring a warrant, the Court emphasized that
    [t]he practical effect of [the existing warrantless search procedures had been] to leave the occupant subject to the discretion of the official in the field,
since
    when [an] inspector demands entry, the occupant ha[d] no way of knowing whether enforcement of the municipal code involved require[d] inspection of his premises, no way of knowing the lawful limits of the inspector's power to search, and no way of knowing whether the inspector himself [was] acting under proper authorization.
387 U.S. at 532. In the inventory search context, these concerns are absent. The owner or prior occupant of the automobile is not present, nor, in many cases, is there any real likelihood that he could be located within a reasonable period of time. More importantly, no significant discretion is placed in the hands of the individual officer: he usually has no choice as to the subject of the search or its scope. .
In sum, I agree with the Court that the routine inventory search in this case is constitutional.

## Notes

↑ . Routine inventories of automobiles intrude upon an area in which the private citizen has a "reasonable expectation of privacy." Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring). Thus, despite their benign purpose, when conducted by government officials, they constitute "searches" for purposes of the Fourth Amendment. See Terry v. Ohio, 392 U.S. 1, 18 n. 15 (1968); United States v.Lawson, 487 F.2d 468 (CA8 1973); Mozzetti v. Superior Court, 4 Cal.3d 699, 709-710, 484 P.2d 84, 90-91 (1971) (en banc). Cf. Cardwell v. Lewis, 417 U.S. 583, 591 (1974) (plurality opinion).
↑ . The principal decisions relied on by the State to justify the inventory search in this case, Harris v. United States, 390 U.S. 234 (1968); Cooper v. California, 386 U.S. 58 (1967); and Cady v. Dombrowski, 413 U.S. 433 (1973), each relied in part on significant factors not found here. Harris only involved an application of the "plain view" doctrine. In Cooper, the Court validated an automobile search that took place one week after the vehicle was impounded on the theory that the police had a possessory interest in the car based on a state forfeiture statute requiring them to retain it some four months until the forfeiture sale. See 386 U.S. at 61-62. Finally, in Cady, the Court held that the search of an automobile trunk "which the officer reasonably believed to contain a gun" was not unreasonable within the meaning of the Fourth and Fourteenth Amendments. 413 U.S. at 448. See also id. at 436-437. The police in a typical inventory search case, however, will have no reasonable belief as to the particular automobile's contents. And, although the police in this case knew with certainty that there were items of personal property within the exposed interior of the car — i.e., the watch on the dashboard — see ante at 366, this information alone did not, in the circumstances of this case, provide additional justification for the search of the closed console glove compartment in which the contraband was discovered.
↑ . The interest in protecting the police from liability for lost or stolen property is not relevant in this case. Respondent's motion to suppress was limited to items inside the automobile not in plain view. And the Supreme Court of South Dakota here held that the removal of objects in plain view, and the closing of windows and locking of doors, satisfied any duty the police department owed the automobile's owner to protect property in police possession. 89 S.D. ___, ___, 228 N.W.2d 152, 159 (1975).
↑ . See Mozzetti v. Superior Court, supra at 709-710, 484 P.2d at 991.
↑ . See Note, Warrantless Searches and Seizures of Automobiles, 87 Harv.L.Rev. 835, 853 (1974).
↑ . A complete "inventory report" is required of all vehicles impounded by the Vermillion Police Department. The standard inventory consists of a survey of the vehicle's exterior — windows, fenders, trunk, and hood — apparently for damage, and its interior, to locate "valuables" for storage. As part of each inventory a standard report form is completed. The report in this case listed the items discovered in both the automobile's interior and the unlocked glove compartment. The only notation regarding the trunk was that it was locked. A police officer testified that all impounded vehicles are searched, that the search always includes the glove compartment, and that the trunk had not been searched in this case because it was locked. See Record 33-34, 73-79.
↑ . As part of their inventory search, the police may discover materials such as letters or checkbooks that "touch upon intimate areas of an individual's personal affairs," and "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). See also Fisher v. United States, 425 U.S. 391, 401 n. 7 (1976). In this case, the police found, inter alia, "miscellaneous papers," a checkbook, an installment loan book, and a social security status card. Record 77. There is, however, no evidence in the record that, in carrying out their established inventory duties, the Vermillion police do other than search for and remove for storage such property without examining its contents.
↑ . The Amendment provides that
    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
↑ . This difference turns primarily on the mobility of the automobile and the impracticability of obtaining a warrant in many circumstances, e.g., Carroll v. United States, 267 U.S. 132, 153-154 (1925). The lesser expectation of privacy in an automobile also is important. See United States v. Ortiz, 422 U.S. 891, 896 n. 2 (1975); Cardwell v. Lewis, 417 U.S. at 590; Almeida-Sanchez v. United States, 413 U.S. 266, 279 (1973) (POWELL, J., concurring). See Cady v. Dombrowski, 413 U.S. at 441-442.
↑ . See, e.g., Chimel v. California, 395 U.S. 752 (1969); Terry v. Ohio, 392 U.S. 1 (1968); Warden v. Hayden, 387 U.S. 294, 298-300 (1967); Cooper v. California, 386 U.S. 58 (1967); Brinegar v. United States, 338 U.S. 160, 174-177 (1949); Carroll v. United States, supra at 153, 156. See also McDonald v. United States, 335 U.S. 451, 454-456 (1948); United States v. Mapp, 476 F.2d 67, 76 (CA2 1973) (listing then-recognized exceptions to warrant requirement: (i) hot pursuit; (ii) plain view doctrine; (iii) emergency situation; (iv) automobile search; (v) consent; and (vi) incident to arrest).
↑ . In this case, for example, the officer who conducted the search testified that the offending automobile was towed to the city impound lot after a second ticket had been issued for a parking violation. The officer further testified that all vehicles taken to the lot are searched in accordance with a "standard inventory sheet," and "all items [discovered in the vehicles] are removed for safekeeping." Record 74. See n. 6, supra.