ATTORNEYS FOR APPELLANT

Ruth Johnson

Suzy St. John

Marion County Public Defender Agency

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Ellen H. Meilaender

James B. Martin

Deputy Attorneys General

Indianapolis, Indiana 

__________________________________________________________________________________

In the

Indiana Supreme Court

_________________________________

No. 49S02-1602-CR-110

LAMONT WILFORD,

Appellant, 

V.

STATE OF INDIANA,

Appellee. 

_________________________________

Appeal from the Marion Superior Court, No. 49F07-1305-CM-035442

The Honorable Deborah Shook, Commissioner

_________________________________

On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-1408-CR-534

_________________________________

February 26, 2016

Rush, Chief Justice.

Both the Federal and State Constitutions protect Hoosiers’ private property from 

unreasonable State intrusion. And so, every inquiry into a warrantless impoundment and inventory 

search of a vehicle—like any other warrantless search or seizure—ultimately depends on whether 

those measures were reasonable based on the surrounding facts. 

Here, police impounded Defendant’s car from a parking lot because he was arrested for 

driving while suspended, the registered owner (his sister) was not present, and the car’s windshield 

and bumper were damaged. Police then began to inventory the car and found a handgun inside, 
2

resulting in Defendant being charged with, and ultimately convicted of, carrying a handgun without 

a license. 

Although such discretionary impounds may be permissible as part of law enforcement’s 

community-caretaking function, they require proof of, among other things, an established departmental procedure that authorized the impoundment. Fair v. State, 627 N.E.2d 427, 433 (Ind. 1993). 

Here, the State presented only the officer’s bare assertion that such a policy existed and that his 

actions were consistent with the policy—but just as in Fair, there was no evidence of the particulars 

of that policy. We therefore hold that the State failed to prove an established departmental procedure

as Fair requires, and thus failed to prove that the impoundment was reasonable. Consequently, the 

search that followed was unreasonable and the handgun obtained pursuant to the invalid search 

was inadmissible. We accordingly reverse Defendant’s handgun conviction. 

Facts and Procedural History

While driving through northwest Indianapolis, Lamont Wilford, Jr. was pulled over by 

Officer Eli Raisovich of the Indianapolis Metropolitan Police Department (“IMPD”) because the 

vehicle exhibited “multiple equipment problems”—namely, a damaged rear end, a broken tail light, 

and a cracked windshield. The car Wilford was driving belonged to his sister, who had lent it to 

Wilford’s father, who had, in turn, lent it to him shortly before the traffic stop. Wilford pulled into 

the parking lot of a Planet Fitness gym, stopped the car, and produced an Indiana identification card. 

Upon learning Wilford’s license was suspended, Officer Raisovich (who was accompanied 

by a TV news film crew and on-air personality) radioed for backup, handcuffed Wilford, and placed 

him in the rear of a police cruiser. The officer then decided to impound the car “because of the unsafe 

condition of it and the fact that . . . Wilford was being arrested and he was not the owner of the 

vehicle.” He further explained, “[W]ith our procedures in that situation, we towed the vehicle.” Prior 

to towing, police searched the vehicle and found a handgun, which Wilford was not licensed to carry.

The record does not show whether police made any effort to contact Wilford’s sister to retrieve her 

car, nor was any inventory sheet admitted into evidence.

At a bench trial, the court admitted the handgun over Wilford’s objections and convicted him 

of carrying a handgun without a license and driving while suspended with a prior suspension—both 
3

as Class A misdemeanors. He was sentenced to 365 days, with 357 days suspended to probation, and 

a $100.00 fine. The Court of Appeals affirmed, holding the impoundment and inventory search 

satisfied Fair’s requirements because the damaged, unsafe car posed a threat to the community or 

itself and the testimony from the impounding officer (a twenty-three-year IMPD veteran) sufficed 

as evidence of departmental procedures. Wilford v. State, 31 N.E.3d 1023, 1031–32 (Ind. Ct. App. 

2015). We now grant transfer, thus vacating the Court of Appeals opinion, Ind. Appellate Rule 

58(A)(2), and reverse Wilford’s handgun conviction.

Standard of Review

Although Fourth Amendment and Article 1, Section 11 questions require independent 

analyses, their answers turn on the same factor—reasonableness. The State bears the burden of 

proving warrantless impoundments and inventory searches are reasonable under both the Fourth 

Amendment and Article 1, Section 11. Fair, 627 N.E.2d at 431 (Fourth Amendment); Taylor v. State, 

842 N.E.2d 327, 334 (Ind. 2006) (Article 1, Section 11). Our evaluation requires that “we examine 

the evidence favorable to the trial court’s decision, with all disputes resolved in favor of the ruling,” 

and also consider “any uncontested evidence favorable to the appellant.” Fair, 627 N.E.2d at 434.

And we will overturn the trial court’s factual findings only if they are clearly erroneous. Id. But the 

ultimate determination of “reasonableness” is a constitutional legal question meriting independent 

consideration by this Court. Id.

Discussion and Decision

I. Vehicle Impoundment, Like Any Seizure of Property, Must Be Reasonable.

Both the Fourth Amendment and Article 1, Section 11 protect “[t]he right of the people to 

be secure in their persons, houses, papers, and effects” against unreasonable searches and seizures.

U.S. CONST. amend. IV; IND. CONST. art. 1, § 11. Automobiles are among the “effects” protected by 

these provisions. Brown v. State, 653 N.E.2d 77, 79, 81 (Ind. 1995). Thus, when police impound a 

vehicle and inventory its contents, they effect a search and seizure, and both measures must be 

reasonable—that is, executed under a valid warrant or a recognized exception to the warrant 

requirement. Taylor, 842 N.E.2d at 330.
4

The inventory search is one such exception since it serves an administrative, not investigatory, purpose—because when police lawfully impound a vehicle, they must also perform an 

administrative inventory search to document the vehicle’s contents to preserve them for the owner 

and protect themselves against claims of lost or stolen property. Id. at 330–31. Consequently, proper 

impoundment is the “threshold question” to valid inventory search. Fair, 627 N.E.2d at 431.

Nevertheless, as with any warrantless search or seizure, the State bears the burden of proving 

reasonableness, id. at 430, and that is where our analysis begins.

Impoundment is reasonable if it is authorized either by statute or the police’s discretionary 

community-caretaking function. Id. at 431–32. Impoundment pursuant to a statute is necessarily 

reasonable because the Legislature has deemed that citizens’ privacy interests in their cars yield to 

State interests in those circumstances, making police inventorying a necessary collateral administrative function. Discretionary impoundment, by contrast, is an exercise of the police communitycaretaking function in order to protect the car and community from hazards. Discretionary 

impoundments, too, may be reasonable—but as we recognized in Fair, and more recently in Taylor, 

they are vulnerable to constitutional reasonableness challenges because of their potential for misuse

as pretext for warrantless investigative searches under the guise of inventory. See Fair, 627 N.E.2d 

at 435; Taylor, 842 N.E.2d at 331–33. Unless the impoundment is proper, then, an inventory search

is per se unreasonable and any contraband found during the search is inadmissible “poisoned fruit.”

Here, we must decide whether impounding Wilford’s vehicle was reasonable—and because

we find no statute specifically authorizing this impoundment,1 we focus on the community-caretaking function.

II. Impounding a Vehicle Under the Community-Caretaking Function Requires Proof of an 

Established Routine or Regulation Authorizing the Impound. 

Community safety often requires police to impound vehicles because they are abandoned 

and obstruct traffic, create a nuisance, or invite thieves and vandals. See Fair, 627 N.E.2d at 431–33.

 

1 The State argues in passing that this impound was authorized by Indiana Code section 9-21-7-1 (2010

Repl.), which prohibits operation of an unsafe vehicle. But the State’s reliance is misplaced, because that 

statute does not confer any specific impoundment authority in case of violations. The State also argues that 

impound was required under Indiana Code section 9-22-1-5 (Supp. 2013) because Wilford did not own the 

car and could not “establish [his] right to possession of” it. We disagree, because nothing in the record 

suggests that police ever doubted that Wilford’s possession was authorized. 
5

These impoundments fall under the police’s “community caretaking function”—a catchall term for 

“the wide range of responsibilities that police officers must discharge aside from their criminal

enforcement activities.” Id. at 431 (quoting United States v. Rodriguez-Morales, 929 F.2d 780, 785 

(1st Cir. 1991), cert. denied, 502 U.S. 1030 (1992)). Indeed, besides enforcing criminal laws, police

“aid those in distress, combat actual hazards, prevent potential hazards . . . and provide an infinite 

variety of services to preserve and protect community safety.” Rodriguez-Morales, 929 F.2d at 784–

85.

We have said that “police may discharge their caretaking function whenever circumstances 

compel it,” Fair, 627 N.E.2d at 432, but also that a decision to impound “must be ‘exercised 

according to standard criteria and on the basis of something other than suspicion of evidence of 

criminal activity.’” Id. (quoting Colorado v. Bertine, 479 U.S. 367, 375 (1987)). Otherwise, 

community-caretaking impoundments could too readily be used “for a general rummaging in order 

to discover incriminating evidence” under the pretext of an administrative inventory. Id. at 435 

(quoting Florida v. Wells, 495 U.S. 1, 4 (1990)).

In view of that potential for pretext, Fair set forth a strict two-prong standard for proving that 

the decision to impound a person’s vehicle without a warrant was reasonable:

(1) Consistent with objective standards of sound policing, an officer must believe the 

vehicle poses a threat of harm to the community or is itself imperiled; and

(2) The officer’s decision to impound adhered to established departmental routine or 

regulation. 

Id. at 433. The State must satisfy both elements—so if it cannot meet one, we need not consider the 

other. Taylor, 842 N.E.2d at 333. Here, we focus solely on Fair’s second prong, which we find dispositive: whether the State proved that Officer Raisovich’s decision to impound Wilford’s car was 

consistent with an established IMPD policy or practice.

We have held impoundments to be unreasonable under similar circumstances in Fair and its 

progeny. In Fair, police arrested the defendant for public intoxication and decided to impound his 

car, even though it was legally parked on private property and did not impede traffic. We held the 

impoundment and subsequent inventory unreasonable because, in “the absence of evidence about

any departmental procedures,” we could not discern whether impoundment was a legitimate 

discretionary impound under the community-caretaking function or mere pretext for an investigatory 
6

search. Fair, 627 N.E.2d at 435. Likewise in Taylor, we applied Fair and held impoundment and 

inventory unreasonable because the car was safely parked on private property, the property owner 

did not request its removal, and the record suggested pretext. Taylor, 842 N.E.2d at 331–33. There 

we said that “it is not true that every vehicle parked illegally must be impounded” if there is no 

evidence it poses a safety hazard or nuisance. Id. at 331. And in Gibson v. State, police arrested the 

defendant for a low-level offense and impounded a car “neatly parked in a relatively secure private 

parking [lot], a convenience store.” 733 N.E.2d 945, 957 (Ind. Ct. App. 2000). Applying Fair, the 

Court of Appeals held the impoundment and inventory unreasonable because “it [was] apparent from 

the record” that impoundment was “nothing more than a pretext to search the vehicle for 

contraband.” Gibson, 733 N.E.2d at 958. These cases illustrate Fair’s boundaries—that impound and 

inventory are unreasonable unless the State can show those actions were “in keeping with established 

departmental routine or regulation.” Fair, 627 N.E.2d at 433. 

III.The Officer’s Generalized Reference to “Our Procedures” Failed to Prove the 

“Particulars” of Those Procedures as Fair Requires. 

Here, then, the question is how the State must prove such an “established departmental 

routine or regulation.” Fair did not expressly state what evidence—written policies or officer 

testimony—would prove established policy. The State contends Officer Raisovich’s testimony 

alone satisfied its burden of proving that impoundment was pursuant to established departmental 

procedure and therefore reasonable. While the State is correct that we do not require evidence of 

written procedures, we do require more than conclusory testimony from officers. Specifically, Fair

rejected “an officer’s generalized assertion” as adequate evidence of established procedures because

such evidence could not eliminate pretextual impoundment and inventory. Id. at 435. But we see 

no reason why, in lieu of a written policy, specific officer testimony cannot also demonstrate 

established departmental routine or regulation. 

That conclusion is consistent with the vast majority of other jurisdictions that have considered the question. At least nineteen states do not require proof of a written departmental policy 
7

for impoundment or inventorying, but rather will allow officer testimony to show established departmental routine or regulation.2 Only Massachusetts specifically requires the prosecution to introduce

the written policy justifying a community-caretaking impoundment and inventory. Commonwealth

v. Bishop, 523 N.E.2d 779, 780 (Mass. 1988). This case law distills to a simple principle we 

implicitly recognized in Fair and explicitly reiterate today—while written policies are not 

necessary to show established departmental routine or regulation, “absent such [a] writing the 

burden is on the department through the testimony of its officers to show that there is a 

‘standardized impoundment procedure.’” 3 Wayne R. LaFave, Search & Seizure § 7.3(c), at 825–

26 (5th ed. 2012); see also Fair, 627 N.E.2d at 432–33.

Officer testimony provides adequate evidence of departmental impound policy if it outlines

the department’s standard impound procedure and specifically describes how the decision to 

impound adhered to departmental policy or procedure—as opposed to “an officer’s generalized 

assertion” as Fair held insufficient. Here, Officer Raisovich’s testimony provided several reasons 

why he decided to tow Wilford’s car, but he failed to specify how his decision conformed to an 

established departmental impound policy:

Q. Tell me why this vehicle was being inventoried?

A. Uh, because it was being towed because of the unsafe condition of it and the 

fact that uh, that Mr., uh, uh, Wilford was being arrested and he was not the 

owner of the vehicle.

* * * 

Q. Tell me, yeah, tell me again?

A. The condition of the vehicle. I don’t believe it was safe to operate on the 

street because there was uh, you know, danger from the rear window breaks 

 

2 See Ex parte Boyd, 542 So. 2d 1276, 1282 (Ala. 1989); Benson v. State, 30 S.W.3d 731, 733 (Ark. 2000); 

People v. Shafrir, 107 Cal. Rptr. 3d 721, 728–29 (Cal. Ct. App. 2010); People v. Gee, 33 P.3d 1252, 1256–

57 (Colo. App. 2001); State v. Nelson, 555 A.2d 426, 434 (Conn. App. Ct. 1989); People v. Gipson, 786 

N.E.2d 540, 546 (Ill. 2003); State v. Huisman, 544 N.W.2d 433, 437 (Iowa 1996); State v. Oram, 266 P.3d 

1227, 1239 (Kan. Ct. App. 2011); State v. Bickford, 582 A.2d 250, 252 (Me. 1990); O’Connell v. State, 

933 So. 2d 306 (Miss. Ct. App. 2005); State v. Filkin, 494 N.W.2d 544, 550 (Neb. 1993); In re Jeff M., 977 

P.2d 352, 354 (N.M. Ct. App. 1999); People v. Walker, 980 N.E.2d 937, 940 (N.Y. 2012); State v. O’Neill, 

29 N.E.3d 365, 375 (Ohio Ct. App. 2015); Wilson v. State, 871 P.2d 46, 50–51 (Okla. Crim. App. 1994); 

Mayberry v. State, 830 S.W.2d 176, 181 (Tex. Crim. App. 1992); State v. Strickling, 844 P.2d 979, 989–

90 (Utah Ct. App. 1992); State v. Weide, 455 N.W.2d 899, 905 (Wis. 1990); Perry v. State, 927 P.2d 1158, 

1165 (Wyo. 1996).
8

and like I said being in a rear end collision uh, the totality of the thing, he 

didn’t own the vehicle uh, he was being placed under arrest. So uh, with our 

procedures in that situation, we towed the vehicle. 

Simply put, that passing reference to “our procedures in that situation” fails to “provide[] 

the particulars of the policy” as Fair requires. 627 N.E.2d at 436. On this record, we know literally 

nothing about the substance of the “procedures” the officer referenced, let alone how his actions 

adhered to those procedures. Without these “particulars,” then, we cannot evaluate whether this 

impoundment was a reasonable exercise of the community-caretaking function and not merely 

pretext for an inventory search. In sum, absent more detail, Officer Raisovich’s testimony provided 

inadequate evidence of established departmental routine or regulation, making impoundment unreasonable under Fair’s second prong and rendering the handgun found during the subsequent

inventory search inadmissible “poisoned fruit.”

Our conclusion that this impoundment was unreasonable applies under the Indiana Constitution as well. Article 1, Section 11 involves independent analysis, requiring this Court to determine 

whether impoundment and inventory are reasonable under the totality of the circumstances. 

Taylor, 842 N.E.2d at 334. For the same reasons we outline above, we find the absence of established 

departmental policies made impounding Wilford’s vehicle unreasonable under the totality of the 

circumstances and renders the attendant inventory search invalid. 

Conclusion

We reiterate our holding in Fair—impoundment under the community-caretaking function 

is reasonable only pursuant to established police routine or regulations, and generalized assertions 

about such a policy are inadequate to make that showing. Since the State failed to prove an 

established police routine or regulation supporting impoundment under these circumstances, the 

impoundment and subsequent inventory were unreasonable. We therefore reverse Wilford’s 

conviction for carrying a handgun without a license.

Dickson, Rucker, David, Massa, JJ., concur.