[J-6-2024] 

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v. 

MICHAEL THOMPSON,

 Appellant

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No. 85 MAP 2023

Appeal from the Order of the 

Superior Court at No. 2632 EDA 

2021 dated February 7, 2023 

Affirming the Judgment of Sentence 

of the Delaware County Court of 

Common Pleas, Criminal Division, 

at No. CP-23-CR-0002233-2020 

dated December 13, 2021.

ARGUED: March 5, 2024

DISSENTING STATEMENT

JUSTICE WECHT FILED: May 31, 2024

Unaccountably, today’s Majority refuses to decide the issue that we agreed to 

review: whether inventory searches remain valid under Pennsylvania’s Constitution 

following our rejection of the federal automobile exception to the warrant requirement.1 

1 We granted allocatur to answer the following question:

Whether the [t]rial [c]ourt and the Superior Court of Pennsylvania erred in 

determining that an inventory search of an automobile by law enforcement 

is an exception to the Pennsylvania Supreme Court decision in 

Commonwealth v. Alexander, 664 Pa. 145, 243 A.3d 177 (2020) requiring 

a search warrant before conducting a search of a person’s vehicle or 

requir[ing] production and proof of exigent circumstances for a warrantless 

search of a vehicle?

Commonwealth v. Thompson, 303 A.3d 111 (Pa. 2023) (per curiam) (bracketed material 

in original). If there is any obstacle to our consideration of this question, it was just as 

apparent when we issued this order. I cannot discern any impediment of the sort that 

ordinarily warrants dismissal of an appeal as improvidently granted. There is no 

procedural defect here. The issue presented was not waived. The matter is not moot. 

There has been no change in the procedural posture of this case, nor any external change 

in the facts or circumstances. There has been no intervening change in the law. The 

(continued...)
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We have enjoyed ample briefing and argument, and we should render decision. Inventory 

searches violate our Constitution because they deprive citizens of security in their 

possessions2 without adequate justification. Case law has enshrined a set of flawed 

excuses that allow police officers to rummage systematically through citizens’ property 

without a search warrant, on no articulable suspicion of wrongdoing whatsoever.

Inventory searches are premised upon a fiction. This sort of search is tolerated, 

courts say, because (despite all appearances) it is not a matter of law enforcement at all. 

Rather, the governmental intrusion is branded as a “community caretaking” function—a 

service helpfully performed by police to safeguard citizens’ property. This is so 

notwithstanding that the property’s owner, whose thoughts on the matter are not invited, 

would prefer not to be the beneficiary of this “service.” Indeed, in every case in which an 

appellate court perpetuates the inventory search fiction, the owner of the property has 

been convicted of a crime based upon what a police officer discovered while rummaging 

through the owner’s belongings. Quite the service, indeed.

We can call it whatever we want. The fact of the matter is that a government agent 

is conducting a search—without a search warrant, without any exigency or compelling 

need, and without even probable cause that evidence of a crime will be found inside the 

vehicle. For too long the law has legitimized these fishing expeditions. And because the 

justifications offered in their support cannot withstand even minimal scrutiny, continuing 

to pretend that the inventory search is a valid law enforcement function leaves the law 

issue presented is precisely the same now as it was when this Court granted allowance 

of appeal. There appears to be no reason to dismiss this appeal beyond an apparent 

change in the Majority’s willingness to consider the significant legal question that it raises.

2 Compare PA. CONST. art. I, § 8 (“The people shall be secure in their persons, 

houses, papers and possessions from unreasonable searches and seizures . . . .”); with 

U.S. CONST. amend. IV (“The right of the people to be secure in their persons, houses, 

papers, and effects, against unreasonable searches and seizures, shall not be 

violated . . . .”). 
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with a “yawning credibility gap” that we should no longer tolerate.

3 There is no good 

reason for this species of search. The inventory search is an unreasonable search, for it 

needlessly strips people of their right to privacy in their possessions guaranteed under 

Article I, Section 8 of the Pennsylvania Constitution, while providing no corresponding 

benefit to any legitimate governmental interest.

Privacy is the watchword. Although the reasons for the Court’s dismissal today 

are unstated, the difficulty may be the perceived degree of connection between the 

inventory search doctrine and our decision in Commonwealth v. Alexander.

4 While

Alexander does not directly answer the question before us, the connection is apparent on 

the face of the case law. The inventory search doctrine is built upon the very same 

foundation as the federal automobile exception that we rejected in Alexander: the United 

States Supreme Court’s insistence that people have a diminished privacy interest in their 

vehicles, which interest is therefore unworthy of any meaningful protection. Here in 

Pennsylvania, as Alexander makes plain, our Constitution (which predates the United

States Constitution by a dozen years) embodies “a strong notion of privacy, 

notwithstanding federal cases to the contrary.”5 This recognition of significant privacy 

rights forms the core of this Court’s conclusion that Article I, Section 8 of the Pennsylvania 

Constitution “affords greater protection to our citizens than the Fourth Amendment” in the 

context of vehicle searches.6 It is not Alexander’s rejection of the federal automobile 

3 Charles E. Moylan, Jr., The Inventory Search of an Automobile: A Willing 

Suspension of Disbelief, 5 U. BAL. L. REV. 203, 203 (1976).

4 Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020) (holding that the federal 

“automobile exception” to the warrant requirement is invalid under Article I, Section 8 of 

the Pennsylvania Constitution).

5 Alexander, 243 A.3d at 203 (quoting Commonwealth v. Edmunds, 586 A.2d 887, 

898 (Pa. 1991)).

6 Id. at 181.
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exception that controls the matter before us. Rather, Alexander’s relevance lies in its

doctrinal underpinnings, which are plainly inconsistent with the assumptions underlying 

the federal approach to privacy rights in vehicles and, thus, with inventory searches.

I.

Let us recall what an inventory search is. When a driver is arrested and cannot

lawfully move the vehicle for whatever reason, and the vehicle is in a place where it cannot 

remain—where it is unlawfully parked or poses some obstacle to traffic or the like—the 

vehicle may need to be impounded. Most often, this is achieved when a police officer 

summons a tow truck operated by a private towing company. But, because police officers 

ostensibly are in possession of the arrestee’s property (even though it often is turned over 

to the towing company), they deem themselves responsible for its safekeeping. Thus, a

police officer enters the car, searches it, and creates an “inventory” of the items inside it.

Why? According to the United States Supreme Court’s decision in South Dakota 

v. Opperman, this intrusion is justified by “three distinct needs,” none of which (we are 

told) relates to investigation of the driver for any potential crime.7 I discuss each of these

“needs” in detail below. It is the purportedly non-investigatory purpose of these “needs,”

courts say, that ameliorates the obvious constitutional concern raised when a police 

officer searches a person’s property without a warrant, and without even probable cause

of wrongdoing. None of the safeguards that attend the warrant procedure are relevant, 

the inventory search doctrine holds, because, before conducting the search, the police 

officer removes his or her proverbial “criminal investigator” hat and dons a “community 

caretaker” hat, whereupon the officer’s role suddenly is “totally divorced” from any interest 

7 South Dakota v. Opperman, 428 U.S. 364, 369 (1976).
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in investigating crime.8 When the officer then rummages through the car, ostensibly for 

non-investigatory reasons, and comes across evidence of a crime (by sheer 

happenstance, of course), the officer again dons the “criminal investigator” hat, and the 

evidence may then be seized and used against the motorist in a criminal prosecution. 

Through this convenient device and imperceptible shift in the officer’s ostensible

motivation, evidence for a prosecution is gathered without any of the safeguards 

mandated by our Constitution.

II.

What does that have to do with Alexander? After all, Alexander concerned the 

federal automobile exception—a rule in Fourth Amendment jurisprudence that allows 

immediate, warrantless searches of vehicles upon the establishment of probable cause.9 

To be sure, the federal automobile exception is a wholly distinct constitutional doctrine, 

which does not implicate “community caretaking,” and Alexander did not address 

inventory searches. However, a brief review of Opperman reveals that inventory 

searches rely upon the same rationalization as the federal automobile exception—the 

same one that we rejected unequivocally in Alexander.

Opperman begins with the premise that, under the Fourth Amendment, 

automobiles are entitled to significantly less protection than other protected spaces. In 

8 Cady v. Dombrowski, 413 U.S. 433, 441 (1973) (“Local police officers, unlike 

federal officers, frequently investigate vehicle accidents in which there is no claim of 

criminal liability and engage in what, for want of a better term, may be described as 

community caretaking functions, totally divorced from the detection, investigation, or 

acquisition of evidence relating to the violation of a criminal statute.”); see Opperman, 

428 U.S. at 368 (quoting Cady) (“In the interests of public safety and as part of what the 

Court has called ‘community caretaking functions,’ . . . automobiles are frequently taken 

into police custody.”).

9 See, e.g., California v. Carney, 471 U.S. 386, 390-94 (1985); Chambers v. 

Maroney, 399 U.S. 42, 48-52 (1970); Carroll v. United States, 267 U.S. 132, 153-59 

(1925).
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the very first sentence of its analysis, the Opperman Court stated that the “Court has 

traditionally drawn a distinction between automobiles and homes or offices in relation to 

the Fourth Amendment.”10 The Court then proceeded through the rationales that 

undergird the federal automobile exception. First, the Court noted the supposed exigency 

that arises from the inherent mobility of vehicles. “Besides the element of mobility,” 

however, “less rigorous warrant requirements govern because the expectation of privacy 

with respect to one’s automobile is significantly less than that relating to one’s home or 

office.”11 The Opperman Court observed that police frequently interact with automobiles, 

and that automobiles are subject to pervasive government regulation.

12 The Court added 

that the “obviously public nature” of automobile travel further “diminishes” the expectation 

of privacy in vehicles:

One has a lesser expectation of privacy in a motor vehicle because its 

function is transportation and it seldom serves as one’s residence or as the 

repository of personal effects. . . . A car has little capacity for escaping 

public scrutiny. It travels public thoroughfares where both its occupants and 

its contents are in plain view.13

Clearly underlying the Opperman Court’s rationale approving of inventory searches was 

its baseline assumption that the Fourth Amendment provides only minimal protection of 

automobiles, and that, due to the diminished expectation of privacy therein, intrusions into 

automobiles are not significant enough to require search warrants.14

10 Opperman, 428 U.S. at 367.

11 Id.

12 Id. at 368.

13 Id. (quoting Cardwell v. Lewis, 417 U.S. 583, 590 (1974)).

14 Subsequent cases have underscored the fact that the Court’s diminished-privacy

rationale was foundational to its inventory search doctrine. As the Court later summarized 

its decision:

(continued...)
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Any reader of our decisions in this area will know that the “diminished expectation 

of privacy” rationale is familiar to this Court. Relying in part upon Opperman, a plurality 

of this Court in Commonwealth v. Gary sought to adopt the diminished-privacy rationale

as the law of Pennsylvania, but did not receive majority support for its approach.

15 Rather, 

the Court in Gary adopted the federal automobile exception only by virtue of then-Justice 

Saylor’s concurrence, in which he voiced “reservations,” but nonetheless supported the 

adoption of the federal rule, not for the reasons offered by the plurality, but instead “for 

the sake of certainty and consistency.”16

Significantly for subsequent Pennsylvania law, then-Justice, now-Chief Justice 

Todd authored a powerful dissent in Gary, in which she illustrated the incompatibility 

between the federal automobile exception and our greater respect for privacy rights under 

Article I, Section 8 of the Pennsylvania Constitution.17 In so doing, Justice Todd laid 

waste to the United States Supreme Court’s diminished-privacy rationale, stressing that 

the Opperman-era theory has been “seriously eroded by both the advance of technology 

and the practical reality of how owners, operators, and passengers in automobiles utilize 

In Opperman, this Court assessed the reasonableness of an inventory 

search . . . . We found that inventory procedures serve to protect an 

owner’s property while it is in the custody of the police, to insure against 

claims of lost, stolen, or vandalized property, and to guard the police from 

danger. In light of these strong governmental interests and the diminished 

expectation of privacy in an automobile, we upheld the search.

Colorado v. Bertine, 479 U.S. 367, 371-72 (1987) (emphasis added).

15 Commonwealth v. Gary, 91 A.3d 102, 127-28 (Pa. 2014) (plurality) (citing, inter 

alia, Opperman, 428 U.S. at 367-68).

16 Id. at 138 (Saylor, J., concurring).

17 Id. at 139-60 (Todd, J., dissenting) (analyzing the protections afforded by the 

Pennsylvania Constitution under the rubric of Commonwealth v. Edmunds, 586 A.2d 887 

(Pa. 1991)). Then-Justice Baer joined then-Justice Todd’s Gary dissent.
[J-6-2024, 85 MAP 2023] - 8

them in modern times.”18 Like the Gary plurality, Justice Todd expressly recognized 

Opperman as critical to the development of the federal approach to the privacy interests 

(or lack thereof) in automobiles.19 Indeed, stressing that the Supreme Court’s 

justifications for the federal automobile exception have shifted over time toward the 

diminished-privacy rationale, Justice Todd noted that the Supreme Court “has never fully 

explained its rationale in electing to place primary emphasis on the factors it cited in 

Carney—which it imported from Opperman—in order to justify its complete dispensation 

with the warrant requirement.”20 Justice Todd then proceeded through the Supreme 

Court’s purported justifications for the diminished-privacy rationale, stressing that it is 

inconsistent with the manner in which people actually use their vehicles, and that the 

pervasive governmental regulation of automobiles is an insufficient reason to allow 

warrantless searches of their interiors.21

Under the compelling logic of Justice Todd’s Gary dissent, the foundation of 

Opperman is outdated at best, and at worst nonsensical. It would be one thing if Justice 

Todd’s dissent remained a minority view, but, as our subsequent decision in Alexander 

makes clear, Justice Todd’s perspective in Gary correctly articulated the law of this 

Commonwealth. In overruling Gary and rejecting the federal automobile exception under 

18 Id. at 139 (Todd, J., dissenting).

19 Id. at 148-49 (noting that, in the 1970s, the Supreme Court “began to treat the 

entirety of an automobile as an area in which its owner or occupant possesses a 

diminished expectation of privacy”) (citing Opperman, 428 U.S. at 367-69; Cady, 413 U.S. 

at 441-42). 

20 Id. at 149.

21 Id. at 149-54.
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our own Constitution, this Court in Alexander expressly adopted Justice Todd’s 

constitutional analysis in Gary. 22

A perusal of Alexander reveals that this Court plainly rejects Opperman’s 

diminished-privacy rationale. Where Opperman reasoned that people have a diminished 

expectation of privacy in automobiles due, in part, to its insistence that the function of 

automobiles is solely “transportation,” and that automobiles do not often serve as a 

“repository of personal effects,” Alexander invoked Justice Todd’s more realistic view:

Moving to the privacy interests involved, Justice Todd strenuously 

disagreed with the [Gary] plurality’s diminishment of privacy expectations 

regarding vehicles. Quoting scholarly criticism of the high Court’s 

arguments on that point, Justice Todd concluded that the plurality’s analysis 

“disregards the plain fact that today’s automobile is not just used to transport 

persons, but, also, to store and transport a myriad of their most private 

belongings.” Nor is a car just a car; most Americans view their vehicle “as 

something more than just a means of transportation.”23

In short, Opperman’s assertions are inconsistent with reality—people do view their 

cars as valuable for more than mere transportation, and cars often do contain people’s 

personal effects. Alexander recognized this truth, and it rejected Opperman’s diminishedprivacy rationale as a matter of Pennsylvania constitutional law.

22 See Alexander, 243 A.3d at 202 (“We conclude that Justice Todd’s Edmunds

analysis thoroughly and convincingly established the heightened protocols of Article I, 

Section 8 and see no need to tread that same ground. The scholarly analysis thoroughly 

discussed the four Edmunds factors, and we adopt Justice Todd’s compelling analysis as 

our own.”).

23 Id. at 190 (quoting Gary, 91 A.3d at 152-53 (Todd, J., dissenting)) (citations 

omitted); see also id. at 192 (“Vehicles contain a variety of features that let users store 

items away from public view such as trunks, glove boxes, and internal storage 

compartments. A vehicle is not just a method of transportation, as drivers frequently take 

long drives and many Americans opt for driving to work instead of taking public 

transportation precisely because of the privacy afforded by vehicles. As Justice Todd 

summarized the point, a vehicle functions as a ‘home away from home.’”).
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Alexander is relevant to the viability of inventory searches under the Pennsylvania 

Constitution because Alexander made clear that our law protects people’s privacy 

interests in their vehicles. Inventory searches, by contrast, are premised upon a baseline 

assumption in federal law that this interest is unworthy of meaningful protection under the 

Fourth Amendment—that intrusions into vehicles are not really a “big deal,” at least not 

to the extent that a search warrant should be required. In Pennsylvania, such deprivations 

of privacy are a big deal. The incompatibility between Alexander and Opperman is 

apparent on the face of the opinions. One cannot read those decisions in tandem and 

come away with the sense that Opperman is consistent with Article I, Section 8 of our 

Constitution.24

Having expressly rejected the assumption underlying Opperman, why would we 

embrace its conclusion? The question is not one of “departure” from federal law—

Alexander and Justice Todd’s Gary dissent already have performed the relevant 

Edmunds analysis on that question.

25 Because we already have departed from the 

applicable federal law, the question should be whether anything in Opperman warrants 

24 To the extent that one could question whether the instant appeal properly frames 

the issue, Appellant Michael Thompson’s brief plainly connects his challenge to the 

inventory search doctrine to Alexander’s recognition of enhanced privacy protections in 

vehicles. See Thompson’s Br. at 13 (asserting that “the Fourth Amendment standard 

used in both Cady and Opperman to justify the search of a vehicle simply does not apply 

to this case”); 14 (Alexander “definitively rejected the . . . rationale stated in Opperman”; 

Opperman’s diminished-privacy rationale “is exactly the opposite of what this Court 

dictated in Alexander”); 14-16 (discussing the greater privacy interests recognized in 

Alexander and Justice Todd’s Gary dissent). As well, the Superior Court in this case, 

although deeming itself bound by existing precedent, also correctly framed the issue for 

us. Commonwealth v. Thompson, 289 A.3d 1104, 1111 (Pa. Super. 2023) (“The

Alexander Court’s rejection of the United States Supreme Court’s views on the privacy 

interests involved in an automobile may well support some limitations on the inventory 

search doctrine.”).

25 See DePaul v. Commonwealth, 969 A.2d 536, 547 (Pa. 2009) (noting that, “[g]iven 

this Court’s extensive consideration of Article I, Section 7 under the Edmunds factors” in 

an earlier decision, “there is no reason to engage in a full-blown Edmunds analysis here”).
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our continued adherence to the rule that it endorses. And when one considers the 

reasons that Opperman gave for approving inventory searches, it quickly becomes 

apparent that they are remarkably devoid of merit.

III.

As noted above, Opperman insisted that inventory searches have nothing at all to 

do with investigating crime, but rather constitute a “community caretaking” function. This 

is because, the Court claimed, inventory searches are not about obtaining evidence, but, 

rather, “developed in 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.”26 Although each supposed “need” implicates some legitimate goal in the 

abstract—or sounds that way, anyway—the inventory search does nothing to advance 

the stated interests. Indeed, inventory searches are harmful to those interests.

Let us assess each supposed “need” in turn.

(a) “Protection of the owner’s property while it remains in police custody”

Immediately, we face a contradiction. The premise that protecting the vehicle 

owner’s personal property provides a reason to rummage through the vehicle without a 

warrant is facially incompatible with the Opperman Court’s asserted reasons for finding a 

diminished expectation of privacy in the vehicle in the first place. Opperman noted that 

“standard inventories often include an examination of the glove compartment, since it is 

a customary place for documents of ownership and registration, as well as a place for the 

temporary storage of valuables.”27 Perhaps the Opperman Court hoped that the reader

would forget its assertion, mere paragraphs earlier, that the privacy interest in vehicles is 

26 Opperman, 428 U.S. at 369 (citations omitted).

27 Id. at 372 (emphasis added; citation omitted).
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diminished because vehicles “seldom” serve as a “repository of personal effects.”28 It is 

curious that an inventory search is necessary to protect valuables that the Court insists 

are unlikely to be in the vehicle at all.

In any event, the claim that the police officer is conducting the search for the 

owner’s benefit is dubious. Although the Supreme Court has made some efforts to 

constrain the decision-making discretion of officers performing inventory searches”29

there is one party whose choice in the matter is conspicuously absent from the 

discussion—the owner of the vehicle. As Justice Marshall suggested in dissent in 

Opperman: “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.”30 Yet, the Supreme Court has ignored this “obvious” 

objection.

Indeed, in Bertine, the Court expressly rejected a lower court’s suggestion that an 

inventory search was unreasonable because the owner had not been “offered the 

28 Id. at 368 (quoting Cardwell, 417 U.S. at 590); but see Alexander, 243 A.3d at 190; 

Gary, 91 A.3d at 152-53 (Todd, J., dissenting).

29 The Court has attempted to provide a guardrail in its references to the need for 

“standard police procedures” to avoid the potential for abuse. Id. at 372, 376; see also 

Bertine, 479 U.S. at 372-76; Florida v. Wells, 495 U.S. 1, 3-5 (1990). The Supreme 

Court’s suggestion that “standard procedures” serve as a sort of constitutional salve is 

not my focus here, because I find the inventory search doctrine to be inadequate at its 

core. But even assuming the legitimacy of the doctrine’s foundations, the “standard 

procedures” caveat is a fig leaf. Many police departments’ standard inventory-search 

policies will amount to a direction to search the vehicle whenever it must be impounded, 

to the fullest extent allowed by law. As one jurist has commented: “Police routine cannot 

be the constitutional touchstone unless we are willing to entrust our liberties to the 

discretion of the police commissioner.” Moylan, supra n.2, at 220.

30 Opperman, 428 U.S. at 392 (Marshall, J., dissenting).
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opportunity to make other arrangements for the safekeeping of his property.”31 Although 

giving him “an opportunity to make alternative arrangements would undoubtedly have 

been possible,” the Court declared that it matters not what “could have been achieved”; 

rather, the question is “whether the Fourth Amendment requires such steps . . . .”32 Of 

course, the Court concluded that it was not necessary to allow the owner the opportunity

to safeguard his own property, and the owner’s consent to the search of his vehicle was 

not deemed necessary, or even relevant.

It is a strange service indeed whose beneficiary has no choice but to assent. If 

given the option, it is safe to surmise that most people would prefer that police officers

not rummage through their personal belongings. Most of us likely would decline such 

generosity, and would content ourselves with the steps we ordinarily take to secure the 

contents of a vehicle—rolling up the windows and locking the doors.33 Even if a car’s 

owner cannot readily be identified and thus cannot provide consent or voice an objection, 

it is unreasonable to assume that the owner would gladly accept the forfeiture of his or 

her constitutional rights in exchange for this uninvited “protection.”34 The officer’s

31 Bertine, 479 U.S. at 373.

32 Id. at 373-74 (quoting Illinois v. Lafayette, 462 U.S. 640, 647 (1983)) (emphasis in 

original).

33 See, e.g., Mozzetti v. Superior Ct., 484 P.2d 84, 89 (Cal. 1971) (“In weighing the 

necessity of the inventory search as protection of the owner’s property against the 

owner’s rights under the Fourth Amendment, we observe that items of value left in an 

automobile to be stored by the police may be adequately protected merely by rolling up 

the windows, locking the vehicle doors and returning the keys to the owner. The owner 

himself, if required to leave his car temporarily, could do no more to protect his property.”); 

see also Opperman, 428 U.S. at 394-95 (Marshall, J., dissenting) (citing Mozzetti).

34 Moylan, supra n.2, at 218 (quoting Comment, Chimel v. California: A Potential 

Roadblock to Vehicle Searches, 17 U.C.L.A. L. REV. 626, 641 (1970)) (“It is true that when 

a car must be impounded the risk that some items will be removed when the car is taken 

to a garage may still be present. But even if this small risk does exist, it is unreasonable 

(continued...)
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property-protection service is particularly unwelcome, one might assume, where it results 

in criminal charges and the incarceration of the supposed beneficiary. As one jurist pithily 

noted: “The failure to consult the wishes of the individual concerned makes a mockery of 

the claim that the search is in the interest of protecting his personal property. It would be 

of small comfort to go to the penitentiary, reassured that you are there only because the 

police were adamant in protecting you from petty theft regardless of whether you wished 

such protection.”35

To the extent that inventory searches offer any “protection of the owner’s property,”

that supposed benefit is offset by the fact that the search constitutes a different kind of 

harm to the property—unwarranted government intrusion. They are trespasses upon 

private property, rendering the people less “secure in their . . . possessions.”36

(b) “Protection of the police against claims or disputes over lost or stolen 

property”

Perhaps the most oft-invoked justification for inventory searches is the claim that 

performing the inventory guards the police officer against claims of theft. It would be one 

thing if the inventory search did anything to serve this interest. But it does not; indeed, it 

only increases the risk of such controversies.

There is a legitimate question about whether this is a real problem in the first place. 

Private towing companies manage to impound cars every day without anyone rummaging 

through the cars’ interiors, and such companies appear to be able to operate despite the 

potential for disputes over stolen property. Claims against tow truck drivers and impound 

to think that the owner would exchange Fourth Amendment rights for unwanted protection 

against theft.”).

35 Id. at 219.

36 PA. CONST. art. I, § 8.
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lots clearly have not overburdened the legal system or driven these companies into 

bankruptcy. No one has produced any evidence to suggest that the abolition of inventory 

searches would lead to a deluge of burdensome claims against police departments for 

items missing from impounded vehicles. Is the “problem” to which inventory searches

purportedly respond even actually a problem, or is it a figment of the judicial imagination?

But let us suspend disbelief and assume for argument’s sake that the concern is 

warranted. The inventory search provides no remedy. All that the search achieves is the 

production of a written list of items in the vehicle, ostensibly to be later compared with the 

contents when the vehicle is returned to the owner. This piece of paper proves nothing. 

The owner could merely claim that the officer stole an item and deliberately left that item

out of the inventory. This observation was obvious well before Opperman,

37 and even 

Justice Powell’s Opperman concurrence noted that inventory searches are not “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.”38 The Opperman 

majority mustered no response to Justice Powell’s point. It remains to be seen, then, how 

the preparation of an inventory actually deters even a single claim of theft.

37 See, e.g., In re One 1965 Econoline, I. D. No. 16JH702043, Ariz. License No. EC7887, 495 P.2d 504, 508-09 (Ariz. Ct. App. 1972) (“We fail to see how the taking of an 

inventory will insulate the police against false accusations of theft and assure the property 

owner that his property will not be taken. Unscrupulous persons who desire to steal 

articles will simply not list them on the inventory. Owners who wish to assert spurious 

claims against law enforcement officers or the garage owners can simply claim that the 

officers did not list them on the inventory.”).

38 Opperman, 428 U.S. at 379 (Powell, J., concurring); see also id. at 391 (Marshall, 

J., dissenting) (“Moreover, as Mr. Justice Powell notes, it may well be doubted that an 

inventory procedure would in any event work significantly to minimize the frustrations of 

false claims.”) (citation omitted).
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Indeed, if the aim is to deter claims of theft against police officers, then performing 

an inventory search is perhaps the worst way to achieve that end. The inventory search 

places the officer into direct contact with myriad items that otherwise would remain secure 

inside the vehicle. In conducting the inventory, the officer handles the owner’s personal 

effects, with which the officer otherwise would have no interaction. Interacting with the 

property in this manner increases the possibility that items could be lost or stolen, and 

only increases the officer’s exposure to claims of such. The best defense to a hypothetical 

claim that the officer stole an item from inside the vehicle is not some self-serving scrap 

of paper; the best defense rather would be a circumstance in which the officer honestly 

could say: “I couldn’t have stolen it because I never went inside the vehicle.”

To that end, as with many areas of search-and-seizure jurisprudence, 

developments in technology should give us pause about certain assumptions that 

underlay older judicial decisions.39 The inventory search doctrine developed long before 

the widespread proliferation of police body cameras and dashboard cameras. In 

Opperman’s day, a claim of stolen property often may have turned largely or exclusively 

upon the officer’s and claimant’s competing accounts. Today, a significant portion of 

police-citizen interactions are captured in high-quality video and audio from beginning to

end. Video footage demonstrating that the officer never searched the interior of the car

would be far better evidence of the officer’s innocence than any list of items, which may 

or may not represent the complete contents of the vehicle before the search.

39 See Gary, 91 A.3d at 139 (Todd, J., dissenting) (noting the “undeniable fact that 

our society has undergone a sweeping technological revolution over the many years 

which have elapsed since the time of the federal decisions on which the [Gary] plurality 

opinion relies, seriously undermining the viability of their use as governing constitutional 

norms for vehicle searches in our modern society”); cf. Missouri v. McNeely, 569 U.S. 

141, 155 (2013) (observing that technological developments in the search warrant 

process are relevant to the assessment of exigent circumstances).
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A telling aspect of the protection-against-claims excuse is that inventories are not 

suggested as a necessary protective measure in many other search contexts. When 

police officers execute a search warrant inside a home, for example, they encounter many

more personal items than are likely to be found inside a car. The officers are responsible 

for the premises while conducting the search. With more items present, there is even 

more risk that items could go missing or that the homeowner could accuse an officer of 

theft. Yet, the law has not seen fit to require police officers to produce a written inventory 

of every item in the house so that the owner can determine whether anything is missing 

after the search. Why not? If the asserted interest is so great that it justifies warrantless 

searches of vehicles without probable cause, then one would expect that the same 

“problem” would require a similar “solution” elsewhere. Somehow, the criminal legal 

system appears to function without this “solution.”

Simply put, the protection-from-claims rationale—that a police officer must 

rummage through a person’s property in order to assure that person that the officer has 

not stolen anything—is ludicrous. The far better guarantee of security from the officer’s 

potential theft would be for the officer simply to stay out of the car.

(c) “Protection of the police from potential danger”

Opperman’s final suggestion is that inventory searches are needed to protect 

police officers from potential danger. It is difficult even to conceive of the sort of danger 

that the Opperman Court was imagining. Prior to the inventory search, the officer is 

outside the vehicle. Any potential danger, presumably, is inside the vehicle. What sort 

of object inside the vehicle poses a danger to the officer, if the officer simply remains 

outside the vehicle? Most potentially dangerous objects that could lurk inside a vehicle—

guns, knives, syringes, etc.—pose no appreciable threat to the officer if the officer simply 

does not enter the vehicle and attempt to handle them. An explosive device is nearly all 
[J-6-2024, 85 MAP 2023] - 18

that comes to mind. But it is preposterous to conclude that all vehicles must be subject 

to inventory searches upon impoundment because there are astronomically low odds that 

some particular vehicle may be concealing a bomb or the like.

As with the protection-against-claims rationale, performing an inventory search

does not advance the cited aim and, indeed, is antithetical to that interest. Any potential 

danger to the officer from an object inside the vehicle is exacerbated when the officer 

enters and starts poking around. As Justice Marshall commented: “Not only is protecting 

the police from dangerous instrumentalities an attenuated justification for most 

automobile inventory searches, but opening closed containers to inventory the contents 

can only increase the risk.”40 Justice Marshall compared the suggestion to an analogous 

comment made by a federal district court judge: “The argument that the search was 

necessary to avoid a possible booby-trap is . . . easily refuted. No sane individual 

inspects for booby-traps by simply opening the container.”41 If the concern is that objects 

inside vehicles could be dangerous to police officers, then their safety would be far better 

protected by, again, just staying out of the car.

The protection-from-danger rationale is all the more perplexing given the

availability of the exigent circumstances exception to the warrant requirement. Both 

Pennsylvania law and federal law excuse the need for a search warrant where “the 

exigencies of the situation make the needs of law enforcement so compelling that a 

warrantless search is objectively reasonable.”42 As this Court has noted, “[a]lthough an 

exigency may present itself in a variety of contexts, its defining trait is a ‘compelling need 

40 Bertine, 479 U.S. at 384 (Marshall, J., dissenting).

41 Id. (quoting United States v. Cooper, 428 F.Supp. 652, 654-55 (S.D. Ohio 1977)).

42 Kentucky v. King, 563 U.S. 452, 460 (2011) (quoting Mincey v. Arizona, 437 U.S. 

385, 394 (1978)); see Alexander, 243 A.3d at 207-09.
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for official action and no time to secure a warrant.’”43 If there is any reason whatsoever 

to believe that the contents of a specific vehicle pose some sort of danger to a police 

officer or the public, and if there develops some compelling need for the officer to enter 

the vehicle in order to abate that danger, then nothing precludes the officer’s resort to the 

exigent circumstances exception. Because this avenue is always available where needed

in specific instances, there is simply no need to endorse the inventory search as a 

categorical rule subjecting all vehicles to pointless intrusions, particularly where the 

overwhelming majority of such vehicles pose no threat to the officer’s safety—or anyone 

else’s—at all.

In his Opperman concurrence, Justice Powell remarked: “Except in rare cases, 

there is little danger associated with impounding unsearched automobiles. But the 

occasional danger that may exist cannot be discounted entirely.”44 To the contrary, 

because one must labor even to imagine the nature of this danger, because any such 

danger is only increased by performing an inventory search, and because this entire 

exercise is unnecessary in light of the exigent circumstances exception, the hypothetical 

danger absolutely can, and should, be “discounted entirely.”

IV.

If constitutional rights are to be curtailed, we must demand better reasons. 

Inventory searches do not advance any of the interests that they are said to serve; they 

harm those interests. They “protect” property by trespassing upon it. They do nothing to 

deter or defeat allegations of loss or theft, and they only increase the possibility for loss 

or theft, both actual and alleged. And they are not responsive to any realistic danger; 

43 Commonwealth v. Trahey, 228 A.3d 520, 530 (Pa. 2020) (quoting McNeely, 569 

U.S. at 149).

44 Opperman, 428 U.S. at 378 (Powell, J., concurring).
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again, they only increase the officer’s exposure to whatever hypothetical danger could 

lurk inside the car. If Opperman’s trio of “needs” were truly their purpose, then inventory 

searches are a tremendous failure, and an utter waste of law enforcement resources.

But of course, inventory searches are not really about those rosy good-government 

excuses. They excel at precisely one thing: circumventing the search warrant process in 

an effort to discover evidence of crime. That is why they really exist; it is why law 

enforcement embraces the authority to conduct them, and it is why the government 

inexorably defends their legitimacy in appeals from criminal convictions.

The convenient fiction has persisted for a long time now. The true aims of the 

inventory search have always been apparent from the obvious weakness of the doctrine’s 

justifications. Just a few months before the Supreme Court announced its decision in 

Opperman, then-Judge Charles E. Moylan, Jr., of Maryland’s Court of Special Appeals 

published an article exposing the “intellectual fraud” upon which the inventory search 

doctrine stands. Judge Moylan offered a cutting summary of the “galling gap between 

the pose of the police and what one instinctively knows is their true purpose,” 

commenting:

The fairy tale would have us believe that the police are interested solely and 

exclusively in safeguarding personal property and are naively surprised 

when their “safeguarding” efforts turn up evidence of crime. The strange 

thing about the “safeguarding” is that no effort is ever made to have the 

arrested driver lock the vehicle and park it in a safe place to his own 

satisfaction . . . or to inquire of the arrested driver in any way as to his wish, 

with respect to his non-suspect property. Universally, the police studiously 

avoid all such “safeguarding” alternatives and resort to the single mode of 

“safeguarding,” that also incidentally permits them to get a good look at the 

interior of the car and its contents, even when this mode is far from the most 

convenient. The notion that the criminal evidence they then turn up 

amounts to no more than an unexpected boon strains credulity. A law that 

permits the police frankly and openly to tear a car apart for possible criminal 

evidence when a driver is arrested would not be as offensive as the patent 

intellectual fraud underlying the “inventory” rationale. Everyone knows the 
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real purpose, but police, prosecutors and judges alike play their assigned 

roles with absolutely straight faces.45

Judge Moylan published that piece in the spring of 1976. That summer, the Court 

decided Opperman, and the inventory search—flimsy excuses and all—became the law 

of the land under the Fourth Amendment. But Opperman’s vintage does not make its 

rationale any more compelling. Fine wine this is not. While the law has grown 

accustomed to inventory searches, it has never found an adequate justification for them.

When we are applying the law of the Fourth Amendment, we are bound by 

Opperman, and we must dutifully recite its baffling rationale. But our own Constitution is 

not shackled by federal folly. Under Article I, Section 8 of Pennsylvania’s Constitution, 

we can and do embrace greater protections of privacy rights than federal doctrine would 

allow, and, per Alexander, we already have made that determination with respect to 

people’s vehicles.46 Inventory searches are destructive of those privacy rights, and they 

achieve nothing worthwhile. Our Constitution and our citizens demand better than 

Opperman’s hand-waving excuses. The people are entitled to meaningful protection of 

their possessions. Because there is no good reason to perform inventory searches, they 

are “unreasonable searches” under Article I, Section 8 of the Pennsylvania Constitution.

* * * *

When a police officer faces a situation in which a vehicle must be impounded, my 

proposed constitutional rule is straightforward and simple: (1) Don’t search the car; (2) 

Lock it; then (3) Just have it towed to the impound lot.

45 Moylan, supra n.2, at 209-10.

46 See Alexander, 243 A.3d at 181 (“[W]e hold that Article I, Section 8 affords greater 

protection to our citizens than the Fourth Amendment, and reaffirm our prior decisions: 

the Pennsylvania Constitution requires both a showing of probable cause and exigent 

circumstances to justify a warrantless search of an automobile.”).
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This rule has numerous advantages over the inventory search. It is simple. It is 

predictable. It requires no time-consuming procedure. It does not require the police 

department to develop uniform, standard practices. It allows the officer to dedicate 

valuable law enforcement resources to more worthwhile tasks. It provides the best 

defense to a hypothetical claim of theft of an item from the car. It does not needlessly 

expose the officer to any potential danger inside the car. Most importantly, it respects the 

owner’s privacy rights in the car.

There is no reason to continue to allow inventory searches, and there is no reason 

to dismiss this appeal. I would reverse the order of the Superior Court, and would declare 

that inventory searches violate Article I, Section 8 of the Pennsylvania Constitution.

I respectfully dissent.