William H. Rehnquist: We'll hear argument now in Number 88-1835, Florida against Martin Leslie Wells. Mr. Neimand.
Michael J. Neimand: Mr. Chief Justice, and may it please the Court: During a lawful inventory search of a locked... a locked suitcase was opened for inventory. The Florida Supreme Court suppressed the evidence found therein, finding that the Fourth Amendment requires that the scope of an inventory to be explicitly stated. Florida asked this Court to hold than an inventory search encompasses the entire contents of the vehicle, including closed containers. Such a rule of law will be incontinent with the purposes of Opperman and, as we affirm, in Bertine. That is to satisfy and protect the property of the individual for safekeeping, and the police from false claims of... and due to loss of property. The scope of an inventory in and of itself states that you are to catalogue the doc, the documents and the property found within the car. It is solely to areas where valuable personal property would attach. In the case before the Court, the Florida Supreme Court found that there was a good faith impoundment, and that the inventory of the interior of the car, as well as the inventory of the trunk, was lawful. What the Florida Supreme Court found then, that the opening of the... the prying open of the locked suitcase to inventory that, was unlawful and violative of the principles announced in Bertine, because it held that Bertine required standardized procedures listing the exact nature and scope of an inventory search. The state position in front of this Court is that Bertine does not require such a detailed listing, just that there be procedures, whether written or oral, that all inventory... all impounded cars are inventoried. By requiring that all impounded cars are inventoried, this will take away the evidentiary discretion that this Court has so declared unconstitutional in its previous cases. The evidentiary discretion would be taken away because every car would then be subject to inventory. The inventory would then be--
John Paul Stevens: May I ask, in this case, where is the inventory in the record? Is it in the record?
Michael J. Neimand: --The actual inventory list? No, it's not, Your Honor. The reason it is not in the record is because of the history of this case. The inventory initially was declared improper because it... the defendant was not given a reasonable opportunity to do something other than have the car impounded, in other words, to have someone drive it away or to leave it on the street. Florida is a Fourth Amendment state. By our state constitution we have adopted--
John Paul Stevens: --But they did, they did make an inventory sheet?
Michael J. Neimand: An inventory does in fact exist.
John Paul Stevens: And... but you didn't put it in the record?
Michael J. Neimand: It was never in the record, no, sir.
John Paul Stevens: So we don't know whether they inventoried the contents of the suitcase or not.
Michael J. Neimand: We do not know if it is on the inventory sheet, no. We do not. And it was never brought out below because that was never at issue below. The original issue below was that it was an improper impoundment, in the lower appellate court. In the Florida Supreme Court, this Court had then issued the Bertine opinion, which then said there need not be a reasonable alternative to impoundment in order to make the inventory proper. So at that point in time was the first time that any court discussed the reasonableness of the inventory itself. So therefore, at that point in time it was not part of the record going up.
John Paul Stevens: The defendant didn't rely on the, opening the suitcase in the trial court?
Michael J. Neimand: Well, in the trial court the theory was a consent theory. That the officer had asked him may I look in the trunk, and--
John Paul Stevens: You mean the state's theory was a consent theory?
Michael J. Neimand: --Right.
John Paul Stevens: But did the, did the defendant in the trial court argue that the search of the suitcase was improper?
Michael J. Neimand: At all... I really don't recall if he explicitly raised that issue, at this point in time.
John Paul Stevens: I am just wondering how the case got here.
Michael J. Neimand: It... I, that is how I will explain how it got here, because when... it was strictly an order by the trial court saying the motion to suppress is denied. After it was argued on a consent issue, as well, I believe, the opening of the suitcase was improper.
John Paul Stevens: Well, you say argued on a consent issue, you mean the state took the position there was consent.
Michael J. Neimand: That is right, Your Honor.
John Paul Stevens: What position did the... did the defendant take?
Michael J. Neimand: I believe that he took the position that it was an improper inventory search.
John Paul Stevens: And yet, and in defending that claim, the state did not put in the inventory.
Michael J. Neimand: No, because the state relied strictly on the consent theory, and the court below, the trial court below did not give any factual findings in his order. He simply said denied. When it went up to the lower appellate court, the appellate court found that the consent was too broad, and they, on its own said there was no probable cause. And then on the inventory aspect, which the state brought up at that point in time to try and defend, indicated that under this Court's decision in Opperman and our state court's decisions, then that was an improper impoundment. It was only until it got to the Florida Supreme Court that the actual issue of inventory was brought up, because at that point in time this Court's decision in Bertine had changed the law requiring a reasonable alternative toward impoundment. And at that point in time the Florida Supreme Court recognized that that now bound it in its determination, and found that we did not have to give a reasonable alternative. It was a good faith impoundment based upon a DUI arrest. And that at that point in time the court got involved in the inventory question. It went up from the lower appellate court to the higher appellate court on a certified question within... a certified conflict rather, within Florida, on two... two separate... decisions out of two separate circuits, on the scope of the consent search, based upon this decision... this Court's decision in United States v. Ross. While it was pending because the Florida Supreme Court may, in exercising its discretionary jurisdiction, heard the case on the conflict, they also reached the other matters that were before the court, and that was the impoundment and the inventory.
Sandra Day O'Connor: Mr. Neimand, when did the search occur?
Michael J. Neimand: The inventory search occurred after the arrest, after the car was towed--
Sandra Day O'Connor: What year and what month?
Michael J. Neimand: --It was... the search occurred in 1985, prior to this Court's opinion in Bertine, right around the Opperman era.
Sandra Day O'Connor: And at that time, as a legal proposition, how much discretion did the police officer have to open closed containers during the course of an inventory search?
Michael J. Neimand: Under this... under this Court's ruling?
Sandra Day O'Connor: No, no, no, no. As a matter of local law and procedure.
Michael J. Neimand: Under the procedure as the officer stated, he was working under standard operating procedure that he was to inventory a car upon impoundment from the hood to the trunk. That is what he had testified to.
Sandra Day O'Connor: What does the testimony show the policy was with regard to opening locked containers?
Michael J. Neimand: The... there was no exact testimony on that point. Once again, the reason there was no exact testimony on that point is because that was not at issue at the trial court level. This is a unique area--
Sandra Day O'Connor: And there's no court finding below--
Michael J. Neimand: --No finding at all, Your Honor.
Sandra Day O'Connor: --on what the policy was. So we simply don't know.
Michael J. Neimand: We do know--
Sandra Day O'Connor: Was there some discretion there to open a locked container, or not, in your view?
Michael J. Neimand: --In the state's view, there is no discretion, because an inventory search within operating procedures say you must inventory the vehicle. That includes closed containers anywhere where personal valuable property might be located.
Sandra Day O'Connor: Well, the concern, of course, is to avoid pretextual searches for evidence. Here there was some testimony that the officer conducting the search suspected there had to be marijuana in the car, and the opening of the suitcase was in an effort to locate it.
Michael J. Neimand: That is the testimony, Your Honor. However, the inventory was done in good faith. The article that he looked in was an article where personal property was, or could have been, located. The reasonableness of the search should not depend upon the subjective motivation of the officer, but on the item that is in fact searched. Whereas, if the officer opened the hood of the car and looked into the air manifold, then that would be unreasonable, and that would definitely show that there was other motives. But I don't think we need to look at the other motives to determine the reasonableness of the search. Obviously personal property would not have been found in that scenario. However, in a scenario where they had opened the hood to check to make sure the battery was there, and upon closing the hood a piece of personal property, a gun or something else, came out from under the hood upon closing it down, would it then be reasonable to look further into the hood of the car to determine if there was other personal property involved. I think that is what we have to look at to determine whether or not it is a reasonable search, whether the motivation involved is subjective or whether it is a reasonable standard. I believe that the cases have always held that there always might be a possibility that subjective motivation will come into play, that there will be a dual purpose that evidence of criminal activity might be uncovered during the search. But the question really is, is if it is a proper inventory search to begin with, does the ultimate finding of contraband invalidate the propriety, the original propriety of the inventory search. The state, obviously, suggests that it does not, as long as the state meets the standards that are required by this Court.
Sandra Day O'Connor: Well, now, if the officer listed on the inventory a locked suitcase, would the officer be in violation of the applicable state inventory policy, subject to discipline because he listed it that way on the inventory?
Michael J. Neimand: I would suggest that he would be. I would suggest a better policy would be to open that suitcase, even if it means breaking that suitcase, to list the property, and then put it in the property room. It would be far much of a less of a burden upon the state in terms of cost and energy to pay for a $200 suitcase, than to put a locked suitcase in a property room, and when it's still in police custody something happens in that large property room and we return to him an open suitcase with contents totally missing.
Antonin Scalia: That sounds like a very good rule, but how do we know that was the rule that indeed was in force here?
Michael J. Neimand: Well, we don't know. And I, the state is--
Antonin Scalia: Well, then, we can't possibly affirm the case, or reverse the case.
Michael J. Neimand: --Well, the state, what the state is seeking is a reversal with a remand. We would like a proper rule of law to be followed so that this can then be remanded back to the trial court level for the appropriate findings of fact.
Antonin Scalia: And you assert that in order to sustain the search it... the lower court would have to find what? That it was the policy at the time to open all closed containers, or just those closed containers that seemed likely to contain valuable personal property?
Michael J. Neimand: Well, I think under the inventory doctrine, the only purpose in the inventory doctrine is the protection of the property, personal valuable property. To say you have to open up all containers, regardless of whether they would in fact or could in fact contain personal property, would be too broad in scope under the inventory search doctrine. What the state is saying is that it is to be those containers that reasonably could contain personal property. To open other containers would become just a general exploratory search, because they would not fit under the criteria of inventory searches.
William H. Rehnquist: Mr. Neimand, did the Supreme Court of Florida in its opinion spend any time describing what the rule was in this police department for inventory searches?
Michael J. Neimand: Yes, they did. It was to inventory all articles and property in the vehicle. And that is in the joint appendix as well as in the opinion itself. And as the dissent in the Florida Supreme Court said, that was no different than those standards that were upheld by this Court in Bertine, which allowed going into closed containers, because in that case the standard said detailed inventory. True, in that case there was a factual finding by the trial court saying what that meant, and we don't have one here.
William H. Rehnquist: Well, do you question the accuracy of the description in the opinion of the Supreme Court of Florida of the department's inventory search policy?
Michael J. Neimand: Well, the accuracy of the documentation I, we do not question. The accuracy of the interpretation, obviously, we do in fact question.
Byron R. White: But, the court decided that the instructions were so and so, but they weren't detailed enough. They should have expressly mentioned--
Michael J. Neimand: Well, that... exactly.
Byron R. White: --So that's... they're saying that's what, that's what this Court's opinions require. And that the, that the instructions were deficient because they didn't really expressly deal with it.
Michael J. Neimand: And that is why we are here--
Byron R. White: Exactly.
Michael J. Neimand: --because obviously the state is saying that that is not what this Court has meant by Bertine standard procedures, and the standard procedures that was meant for Bertine simply was that an inventory must occur on all impounded vehicles. And that... and that inventory would go to all articles where valuable personal property might be located.
John Paul Stevens: You just said valuable personal property. Earlier you said the policy was any kind of a container that might reasonably be thought to contain personal property.
Michael J. Neimand: Well, I think in terms of valuable personal property, or personal property, that is my subjective statement. I think personal property to the individual is valuable.
John Paul Stevens: Well then is it not reasonable to assume that any closed container contains something?
Michael J. Neimand: It is most reasonable to assume that, yes, sir.
John Paul Stevens: So that every closed container would reasonably be thought to contain some personal property.
Michael J. Neimand: Yes, sir.
John Paul Stevens: So that would mean that... does that mean that the officer has discretion in every case to open or not to open, or that he must open in every case?
Michael J. Neimand: Well, the discretion is there subject to civil liability. But he doesn't have any discretion over... on the policy level.
John Paul Stevens: I don't understand.
Michael J. Neimand: What I am saying is that--
John Paul Stevens: There is a container in a vehicle, and the officer finds it. Does he have discretion, under your view in Florida, to open or not to open the container?
Michael J. Neimand: --No, he must open it to inventory it.
John Paul Stevens: But if you say that, how do you reconcile that with the court's statement that the Florida Highway Patrol "operates under no mandatory standardized policy regarding closed containers? " You are saying there is such a policy, and it is to open all containers.
Michael J. Neimand: That is right. We are saying that because--
John Paul Stevens: Should we take your word or the court's word on this? [Laughter]
Michael J. Neimand: --Well, I think what we... what the problem we have here is that the testimony of the officer was never fleshed out. That is why what the state is seeking is a rule of law to be properly applied upon a remand, so that the Florida courts could then determine whether or not that policy did in fact exist.
Sandra Day O'Connor: Well, the Florida court apparently was referring to the Highway Patrol Policy Manual, Chapter 16?
Michael J. Neimand: Yes, ma'am.
Sandra Day O'Connor: Uh-huh. We have something on our desks this afternoon, lodged, I guess, by your opponent?
Michael J. Neimand: Correct.
Sandra Day O'Connor: Indicating that it wasn't in effect at that time.
Michael J. Neimand: Well, there is some question as to the effective date of that, but that really has no bearing on this case, because in the testimony of Trooper Adams at the suppression hearing, there was no mention of the rules and regulations. He testified that it was standard operating procedures. And, in fact, the form that was used, I believe in 1603, was in fact the one that was used at that point in time. The rules and regulations which were, came into effect shortly thereafter, merely codified what the Florida Highway Patrol was doing to all procedures during that period of time. It really has no bearing.
Sandra Day O'Connor: And yet the court, as Justice Stevens pointed out, found there was no firm policy.
Michael J. Neimand: Well, the court, again, was looking at the written and not the oral, and the oral statement by the officer was--
Sandra Day O'Connor: Do you think if they had looked at the oral policy they would have found that it was firm and sufficient?
Michael J. Neimand: --Well, again, you know, this case comes before this Court in a strange posture. And that had never been fleshed out. And I would imagine that, based upon the testimony, which said this was the standard operating procedure, that we are to go from hood to trunk, the Florida Supreme Court might well have gone the way they have already. That is why we are really asking for remand for factual findings, and we're asking for rule of law to define what standard procedures are and what is a reasonable scope of an inventory.
Antonin Scalia: And your position is that you lose unless it is their procedure to open every container? Every container.
Michael J. Neimand: Right.
Antonin Scalia: So you find a bottle of, it looks like a bottle of Coca-Cola, you have to open it and make sure it's Coca-Cola? Inventory one bottle of Coca-Cola, now flat. [Laughter]
Michael J. Neimand: Well, I believe that's carrying--
Antonin Scalia: Or a bottle of 1873, it looks like wine, it is 1873 Chateauneauf du Pape. You have to pull the cork on that.
Michael J. Neimand: --I think I could clarify that, that any--
Antonin Scalia: Well, really--
Michael J. Neimand: --closed, non-clear or an opaque container, where you can't ascertain the contents of that. And that is what we are really talking about. We have to be able to ascertain that--
William H. Rehnquist: --I thought you said earlier, too, that it would be a container that would be likely to be, likely to be expected to contain personal property?
Michael J. Neimand: --Yes, exactly.
Antonin Scalia: Every container is likely to contain personal property, isn't it? That's what a container is for, to contain.
Michael J. Neimand: Correct. And we are asking for a very broad rule under the inventory search doctrine, because how else are you going... are the police going to be able to say so--
Antonin Scalia: I think that is a very strict rule. I can't imagine that any police, police force in the... I hope no police force in the country, if they happen to have to impound my car, are going to, you know, open the valuable wine bottles that I have in there and destroy the wine. I think--
Michael J. Neimand: --Well, I think... but I think that's a different area, because they can ascertain simply by looking at the wine bottle, that it is a sealed wine bottle, and an 1850 label, and they are not going to assume the liability to taste that wine.
Antonin Scalia: --So then they don't have to open every container.
Michael J. Neimand: But that is not the type of container we are talking about. We are talking about a container that contains personal property, to catalogue. All we want to do is catalogue the contents of the container. You catalogue one notebook. Now, we don't care what is in that notebook. One notebook. One can of shaving cream. We don't physically remove all the shaving cream to say this is in fact one used can of shaving cream. But when you get to the ounce of cocaine, that is when you are able to take the cocaine.
Antonin Scalia: So you have to allow some discretion. You are saying it is not an absolute requirement that you look inside every container.
Michael J. Neimand: No, in that--
Antonin Scalia: What is the limitation that you are applying?
Michael J. Neimand: --In that scenario, what I was talking about is if you open up a briefcase, if you open up a locked briefcase, and those are the three items you find in that locked briefcase. You catalogue, you list, you don't... there is no need for the police to open up that notebook and read what is in that notebook. There is no need for them to empty that shaving cream.
Antonin Scalia: Why? What is the criterion? When do you say I don't have to open any further?
Michael J. Neimand: When there is no longer a fear of losing personal property.
John Paul Stevens: Well, I have seen notebooks, trial notes for the lawyers or something like that, that are of some importance to the lawyer. It may have 20 pages on a yellow pad or something, and he wants not to lose those. It could be very important to the person, certain pages out of a notebook. If you are worried about... why don't you have to list the number of pages in the notebook, for example?
Michael J. Neimand: Well, the state would have no problem with listing the number of pages, but what I am saying is you don't have to read--
Speaker: But would they have to?
Michael J. Neimand: --page by page. That is how, that is going too far. That is not safeguarding the property. That is reading the property, that is looking for something in the property.
John Paul Stevens: Why isn't it safeguarding if you just list one locked briefcase and no key?
Michael J. Neimand: Because what occurs if you put that briefcase in the property room in a large city, and when six hours, eight hours later, the individual comes to claim it, and someone had seen this real nice briefcase and wanted to know what was inside of it, and it is no longer one locked briefcase, but one open, empty briefcase. And obviously the original inventory sheet done by that same police department, given to the property room, was one locked briefcase.
John Paul Stevens: Well, what if it said one locked briefcase containing three diamond rings, and they come in later and the three diamond rings aren't there?
Michael J. Neimand: But how could they determine if there were diamond rings if it was a locked suitcase?
John Paul Stevens: Well, obviously under your hypothesis, somebody broke into the suitcase and emptied it.
Michael J. Neimand: That is right. But we wouldn't have known that the diamond rings were there had we not had the ability to open that suitcase to begin with. And at that point in time, we would be subject to liability, because it was still in our custody, because we put down three diamond rings. He gets it back and there is nothing. But it was all done in our custody, so yes, we would be liable. But at least at that point in time we know what we would be liable for. If we didn't do that, and what--
Sandra Day O'Connor: Well, why aren't you liable, as you put it, for returning one locked suitcase in the condition in which you received it? What is the matter with that?
Michael J. Neimand: --Because there is always the ability to file a lawsuit in that scenario that when it came back--
Sandra Day O'Connor: Well, there is an ability to file a lawsuit in any scenario.
Michael J. Neimand: --That is right, Your Honor, but we are talking about the costs to the state when they take property into safekeeping. And in terms of a lawsuit, whether it is justifiable or not, it will cost the state a lot more money in terms of manhours and legal fees to defend such a lawsuit than it would be to simply open a locked suitcase and--
Sandra Day O'Connor: What prevented the officer from getting a search warrant to open the suitcase here?
Michael J. Neimand: --Nothing, Your Honor. But in this scenario it was an inventory search. And he might well should have done that, but he didn't, and we are here simply on the inventory search doctrine. But that's a specific factual question on this case.
Antonin Scalia: Maybe probable cause prevented him from getting a search warrant. Are you sure he had probable cause to--
Michael J. Neimand: Well, as the search went on I believe he had probable cause. He had--
Antonin Scalia: --You mean after he found it he had probable cause. [Laughter]
Michael J. Neimand: --No, no, not at all. What happened was, after the impoundment they found $3,000 worth of money. They searched the interior of the car under proper inventory search. They found the marijuana cigarettes, then, under Michigan v. Thomas or United States v. Ross, they then had probable cause to look at other items that might have contained the contraband that they found in the ashtray. In fact--
John Paul Stevens: Is there anything in the record to indicate whether they were looking for more evidence of criminal activity, or were they looking for evidence that they wanted to inventory properly so they wouldn't be sued for losing it?
Michael J. Neimand: --Well, to be quite frank, the officer, as he got further and further along in his search, got hungrier and hungrier.
Speaker: Right.
Michael J. Neimand: Yeah.
John Paul Stevens: And there is no evidence at all that he even wrote down what he found, or filed an inventory or anything--
Michael J. Neimand: There is an inventory.
John Paul Stevens: --But we don't know what it says.
Michael J. Neimand: We don't know what it says.
John Paul Stevens: Who has the burden of establishing the state's practice with regard to inventories, to justify an inventory search?
Michael J. Neimand: The state does. And--
John Paul Stevens: And it failed to meet that burden in this case, and you say you want to go back and try the case over so you can meet it on the second time, is what you are saying.
Michael J. Neimand: --Well, not really. What we are saying is that the Florida Supreme Court applied the wrong rule of law in this case, and that is why we didn't meet the burden.
Byron R. White: I thought you said that the question of closed containers was never an issue in the trial court.
Michael J. Neimand: It was not in the trial court, but it was in the Florida Supreme Court.
Byron R. White: Well, I know, I know, but so you want to, you want to... you have never had a chance to prove what the--
Michael J. Neimand: Policy was.
Byron R. White: --policy is.
Michael J. Neimand: That is correct. And that is why we would like a bright line--
Byron R. White: You want one, you want the first time chance.
Michael J. Neimand: --We would like to begin again, to determine what the policy is.
Thurgood Marshall: Well, suppose there was nothing in the briefcase at all.
Michael J. Neimand: We still could have opened it.
Thurgood Marshall: You what?
Michael J. Neimand: We still could have opened it.
Thurgood Marshall: As this case now stands, you want to go back and put in evidence, and you don't have the inventory.
Michael J. Neimand: We do have the inventory.
Thurgood Marshall: Where is it?
Michael J. Neimand: The officer has the inventory. It was never at issue at the court below, so it was never introduced into evidence by the prosecuting attorney.
Thurgood Marshall: And so you failed to put it in evidence.
Michael J. Neimand: There was no need to put it into evidence.
Thurgood Marshall: You, the government failed to put it into evidence. Is that correct?
Michael J. Neimand: Correct.
Thurgood Marshall: And now you want to put it in evidence.
Michael J. Neimand: We want to establish a policy, yes.
Thurgood Marshall: And you want to use us for that purpose.
Michael J. Neimand: No, we just want the proper principle of law. I would like to reserve the remaining time for rebuttal. Thank you.
William H. Rehnquist: Very well, Mr. Neimand. Mr. Johnson, we'll hear now from you.
Huntley Johnson: Mr. Chief Justice, and may it please the Court: The issue here is much more basic than the State of Florida would have us believe. The question is, is was this an inventory procedure at all. And the answer is no. And the answer is no is because there was no inventory form, and a close study of the record will show that indeed Trooper Adams did not have any idea what was in the car. And I would like to refer to two places in the joint appendix to prove that up, if I could. At page 217 of the joint appendix, the trial counsel is questioning Trooper Adams. Question: All right, did you look in the trunk first? Now, this is his full answer: We opened the trunk and that was it. What was in the trunk? Oil cans and a suitcase. That is the trooper trying to recall what was in the trunk. Question: What? Answer: A couple of oil cans, an oil can, a can of oil, or something like that, and a suitcase. That is at the motion to suppress before the trial judge in this case, and my opponent would have you believe that the trial judge did not address the issue of the inventory in this case. Please look at page 221, in which the argument is before the trial court, and the court says well, it really would appear to me that the thrust of the defense argument here is as contained in the motions, as contained in his memorandum, statement of facts, and is indicated by the line of questioning that he made of the witness, is that the trooper's main interest was not inventorying, but searching for contraband. Clearly it was addressed. The first document in the joint appendix is the motion to suppress in this case. It has got 70-something paragraphs in it, and the thrust of it, it goes to several things, but the inventory search is certainly one of them. Question as to whether this was an inventory or a search, on page 49 of the joint appendix, this is the sworn deposition of Trooper Adams, which was admitted by the trial judge as part of the record because of the fact that he did not want us to go over, did not want trial counsel to go over items that had already been covered in the sworn depositions. Question by trial counsel: Did you see any empty beer cans or beer bottles in the car? Answer: I can't recall any. Well, you at some point did inventory the car. Answer: I did. And if you had-- But that has been awhile since I did that, and if there was a beer can in there I can't remember if there was or not. Okay. I--
William H. Rehnquist: Mr. Johnson--
Huntley Johnson: --Yes, Your Honor.
William H. Rehnquist: --The Supreme Court of Florida, as I read its opinion, discusses this under the head of an inventory search, and they don't say there was no effort to make an inventory search. They say that the manual did not provide the proper instructions for making an inventory search. I... I don't think they accepted your, the theory you are proposing now.
Huntley Johnson: Your Honor, the Supreme Court of Florida was unfortunately under a misguided set of circumstances in that--
William H. Rehnquist: Well, just a minute.
Huntley Johnson: --Yes, Your Honor.
William H. Rehnquist: Be they misguided or not, do you agree with me that they did not follow the theory that you are now expounding, when they came to discuss the inventory search in their opinion? You can answer that--
Huntley Johnson: Yes, I do, Your Honor.
William H. Rehnquist: --You agree with me?
Huntley Johnson: Yes, I do, and I would like to expand on that, if I could, sir. The chief counsel for the Florida Highway Patrol filed an amicus curiae in 1987 in which, this is after the Fifth DCA, the lower appellate court in Florida had ruled three to nothing in favor of the respondent in this case. The amicus curiae was filed, in which they relied on Chapter 16 of the Florida Highway Patrol Manual. Chapter 16 of the Florida Highway Patrol Manual was not in effect at all on February 11, 1985, when Trooper Adams went into the car of Mr. Wells, went into the trunk and into the suitcase, the locked suitcase. The locked suitcase, which should have had a higher expectation of privacy. It wasn't in effect, and unfortunately the supreme court was misled because of that. No one picked it up along the way. None of the appellate lawyers, none of the clerks, none of the court, in the supreme court, but that issue never came up until it was interjected by the counsel for the troopers. It was not in effect. So what we have to look at, under Bertine and after... under the decision of Florida, and the cases before Bertine, is was there any standard caretaking procedure that guided this trooper in this case. The testimony goes to that point on page 82 of the joint appendix. Question: Have you ever applied for a search warrant? Answer: No. Can you think of a set of circumstances under which you might apply for a search warrant when it involves a vehicle? Well, at this time I thought that would be appropriate, a search warrant would be appropriate, but based on what we had here, and it was part of the search, I figured it was part of the search, and I didn't see where it need be. On page 83, Question: When did it first occur to you that maybe a search warrant would be appropriate? Answer: While I was doing the search. But like I said, I felt like opening the suitcase would come under the inventory search of the vehicle. This trooper had no guidelines. Question below that on page 83. Even though it was locked and you had to use knives to pry it open? Answer: Well, I had to take my chances. And the reason, Your Honors, that he had to take his chances, is because he had no procedures to guide him whatsoever. These... this manual came into effect July 1, 1985, four-and-a-half months after this search took place. Prior to that there was no written--
William H. Rehnquist: How do we know that?
Huntley Johnson: --Your Honor--
William H. Rehnquist: Because certainly the Supreme Court of Florida indicated otherwise.
Huntley Johnson: --Your Honor, we have searched the record thoroughly since, unfortunately, this last Thursday night, that in a conversation--
William H. Rehnquist: Well--
Huntley Johnson: --Excuse me, Your Honor.
William H. Rehnquist: --This thing isn't in the record at all.
Huntley Johnson: That is because last Thursday night we noticed that in the record there has never been a date as to when the Florida--
William H. Rehnquist: Well, you don't supplement the record that way in this Court.
Huntley Johnson: --Your Honor, I knew that it was not going to make us look good coming up here, but the point was it is something we just discovered Thursday. We wanted to put it before the Court in good faith. At no point has any date ever appeared in any opinion, any brief, as to when those formal rules went into effect. And those are the rules that the Florida Supreme Court unfortunately was relying on when they wrote the opinion, both the--
William H. Rehnquist: Well then, you know... certainly you can't contend that the judgment of the Supreme Court of Florida should be affirmed on this basis. If there are questions like this, perhaps that is all the more reason for a remand.
Huntley Johnson: --I think the case should be remanded, to be candid, Your Honor. I think the Florida Supreme Court was operating under absolutely the wrong guidelines. But, if this Court wishes to reach to whether the guidelines in this case were sufficient, I think the record speaks aptly to that. But I agree that this case should be remanded, Your Honor, and give the State of Florida a chance to clear up the mess it has made by the fact that it went off on something that was not in fact the record that it should have been relying on when it made this decision. So I do agree with that, sir. Now--
Antonin Scalia: Mr. Johnson, just in case we get to the point, if... what kind of guidelines do you think would be sufficient? Suppose... suppose Florida just had guidelines which said open every container... in making the inventory search, open every container that appears likely to contain valuable personal property. Would that be enough to validate the search here?
Huntley Johnson: --That would be closer, but I don't care for that personally, Your Honor. I think that is too intrusive to go in in that fashion. I think it should be simply inventory everything.
Antonin Scalia: Period.
Huntley Johnson: Period. Or--
Antonin Scalia: Open all... all containers.
Huntley Johnson: --Yes, sir. But I do agree there should be a modicum of discretion. If, for example, a state wishes to limit that which can be gone into under these circumstances, in an inventory search, then I think there still should be just some discretion with the police. Because, if you have in your suitcase a ticking clock that suggests to an officer that that may be a bomb, then certainly I wouldn't want to preclude him from that kind of discretion, Your Honor. I am not trying to suggest a rule that becomes so firm and so inflexible, in either direction, searching everything or searching a very limited number of things--
Antonin Scalia: So you agree there can be some discretion as to whether--
Huntley Johnson: --I think that under special exigencies, if you will, as were spoken about in--
Antonin Scalia: --Under special exigencies you can decline to open.
Huntley Johnson: --No, under a special exigency you could then open, because the special exigency would be a legitimate danger to the police or to the citizenry by, for example, the ticking bomb.
Antonin Scalia: You think the only constitutional role is you can never open containers? I thought we were talking about an inventory--
Huntley Johnson: No, sir.
Antonin Scalia: --rule that says you must always open containers.
Huntley Johnson: No. Either you make it that firm, that you have to open them all, or, if you try, if some law-making agency comes back and tries to draw a line somewhere short of opening all containers, then, at that point, sir, I am saying that some discretion should be available to the police officer when there is a special exigency as I just suggested... a ticking bomb for example.
Antonin Scalia: And that would be discretion not to open.
Huntley Johnson: No, I think that would be... well, you would call the bomb squad at that point, if that is what you mean.
William H. Rehnquist: Yeah. Well, I-- --Mr. Johnson, do you think that there is only one permissible rule that is constitutional for an inventory search?
Huntley Johnson: Meaning no discretion, Your Honor?
William H. Rehnquist: Well, meaning no... perhaps no discretion, or perhaps some discretion, but that one and only one would comply with the Constitution. Is it possible that a no-discretion rule would comply with it, and also that a discretion to open up containers that might contain personal property rule could comply with it?
Huntley Johnson: I would think that under the concept of federalism that that would be a possibility, Your Honor. That the states could choose to handle it in different ways, as long as it satisfied this Court that the minimums of the Fourth Amendment had been adhered to, sir.
Anthony M. Kennedy: But that is not consistent with the Florida Supreme Court's opinion, is it, where it says the police under Bertine must mandate either that all containers will be opened or that no containers will be opened.
Huntley Johnson: No, it is not, Your Honor, and I have great difficulty with their opinion. Obviously they ruled in favor of the Respondent in this case, but we don't necessarily think for the right reasons. The fact that they said absolutely no discretion, I think is too far, and I have tried to explain why by the fact that there is, there are circumstances under which discretion should be appropriate.
John Paul Stevens: But your view of discretion has nothing to do with whether they will find evidence of criminal activity. It is discretion to avoid explosions and things like that.
Huntley Johnson: Well, the Opperman doctrine, yes, sir, would be the situation we are suggesting, Your Honor. And that, I think that the standards set down by Opperman are good standards. And I think that those standards were in effect on February 11, 1985 when Trooper Adams took his chances and went into that suitcase. And if we could speak to Trooper Adams' actions that night, it's important to note that in the dissent of the Supreme Court of Florida's opinion, they talk about the fact that he was under the guidance of his superior officers while he was in the field, that he was checking back with them. That is true at the initial stop site. At the initial stop site Trooper Adams asks his supervisor, what do I do with the money, what do I do with the car. Then the car goes off in one direction to the impoundment site. The trooper and Mr. Wells go off to jail. And Trooper Adams, who, by the way, was only working the 3:00 to 11:00 p.m. shift, at 1:30 a.m. he shows up at the inventory site, at the impoundment center, which has been described by Mr. Bryan in the deposition at page 140 as a very secure facility. He wakes up Mr. Bryan; there is also another security guard. They have dogs, they have lights, they have fences. Wakes him up. They go into the trunk of the car, get out the suitcase, and at no time does Trooper Adams call back and ask for any guidance from his superiors. At that point he is on his own, and he is taking his chances. And it's very important to get to the bad faith here, to go to what Grover Bryan, the disinterested tow truck operator, and what he testifies Trooper Adams says when he gets to the inventory site. On page 141 of the joint appendix, the question by the trial counsel was, now, if you could, with as much detail as you can recall, tell me what occurred between you and Adams, what he said, what you said, and what you all did as a result of the conversation? Answer: Officer Adams said he wanted to inventory the car good. He wanted to go through it real good because he felt there was drugs in it. That is before this car is let down out of the sling of the tow truck. Because Grover Bryan testifies he left the car hanging in the sling.
Antonin Scalia: But that is not a violation of our... of our rules. So, if you do have an inventory procedure, the fact that the real reason you want to apply it is because you think... you think you can find evidence of crime is not a violation, is it?
Huntley Johnson: If there is bad faith and the sole purpose is to investigate--
Antonin Scalia: It's not bad faith. If I have a... I am compelled to inventory. Now, frankly, I think doing an inventory is a terrible job as a cop, it is just more paperwork and what not. The real reason I want to do this one is because I know I am going to find drugs in that car. That is a violation? I mean, you are going to have to repeal human nature if you expect law enforcement officers not to have that feeling.
Huntley Johnson: --Yes, Your Honor, that is a violation under Bertine, as I read it, wherein the opinion talks about--
Antonin Scalia: I thought it was an objective test.
Huntley Johnson: --Bad faith or, and for the sole purpose of investigating. In fact--
Antonin Scalia: This is not the sole purpose of investigating. He... he had... if he has an obligation to do an inventory, he's doing that. But the real reason he wants to do it, in his heart of hearts, is he thinks he is going to find something bad. And that, that's what that quote indicated.
Huntley Johnson: --Well, Justice--
Antonin Scalia: The reason I want to inventory it is--
Huntley Johnson: --Well, Justice Scalia, I would suggest that if he had been inventorying at all, as has been pointed out by the question from Justice Stevens, we would have some list. Lafayette talks about an inventory being the making of a list. I would respectfully suggest we have no list, we have no recollection, and when a trooper is under oath, if we want to talk about common sense, Your Honor, he certainly would be looking at the list that he had of the items when being asked the questions about what was in the car. And he talks about remembering an oil can, but he can't remember if there are beer cans. There is no list; there has never been a list. And to this day we have no list. In this particular case the Respondent's position is this was not a routine administrative procedure. This was an investigation from the very beginning. At page 204 of the joint appendix, when Trooper Adams stops... well, what happens is he stops him for DUI, stops Mr. Wells for DUI. He gives him the roadside field sobriety tests, and he says all right, I am going to take you down to the station for the breathalyzer examination. At that point Mr. Wells says could I get a jacket out of my car, because of the fact that it is cold. They go to Mr. Wells' car, and there is money on the floorboard. At that point, so as to guide as to whether we are in an investigation or an inventory, at that point the trooper is asked, on the bottom of 203, the last question, okay, now you see the jacket, you see the money. What do you do at that point? At that point I asked him to step back from the car. I investigated the vehicle myself. And-- Investigate. Can you clarify for the court what that means? In other words, I checked to see how much money is there, how it is, you know, the money, what else is there in the vehicle and such. That is about it. And the next answer he talks about he was looking for as far as any other contraband other than money. Right... right from the very beginning, Trooper Adams is looking for contraband. As soon as he gets to the inventory site he makes it clear to the disinterested tow truck drivers that he is looking for drugs. He never makes a list. This trooper is in bad faith. We ask this Court to send this case back to Florida so that Florida can straighten out the mess that we caused by sending it up here in the first place. Thank you, Your Honors.
Antonin Scalia: --Mr. Johnson, could I ask you one other question?
Huntley Johnson: Yes, Your Honor.
Antonin Scalia: I know you are not interested in these points, but it is the reason we took the case, and maybe we'll get to them. Is discretion, which we have said is no good with respect to inventory searches, is discretion the same thing as judgment? That is to say, when I tell a trooper that you must open any container... you must open any container that is likely to contain private property, that doesn't give him any discretion. If it's likely to contain it, he must open it. But it does put it in, you know, he has to exercise some judgment in determining whether it contains private property. And I would... is the judgment, does that invalidate the inventory procedure as well?
Huntley Johnson: I think the answer to that is no, Your Honor. If the overall totality of the circumstances is such that the conduct is reasonable of the officer, then I think the answer to your question is no, Your Honor.
William H. Rehnquist: Thank you, Mr. Johnson.
Huntley Johnson: Thank you, Your Honor.
William H. Rehnquist: Mr. Neimand, do you have rebuttal? You have three minutes remaining.
Michael J. Neimand: Yes, Your Honor. First off, my opponent has conceded that the Florida Supreme Court's holding of... interpretation of Bertine, is wrong. And he agrees that there is no all or nothing standard. Basically then, both parties agree that the Florida Supreme Court applied the wrong law under the Fourth Amendment, and therefore this case should be remanded to the Florida Supreme Court for a determination of the issue under the proper standard of the law.
Byron R. White: Yes, but you can't stipulate that the supreme court of--
Michael J. Neimand: No, I am not stipulating.
Byron R. White: --Florida was wrong. You can't--
Michael J. Neimand: I am not stipulating, Your Honor.
Byron R. White: --But, if we thought it was right, I suppose we would affirm it.
Michael J. Neimand: I agree. But, I think both parties here agree there is some sort of problem. The other issue that I would like to bring out is the subjective--
John Paul Stevens: May I also suggest this, that it may have been wrong in stating that there are only two kinds of procedures that would be permissible. That doesn't mean it was necessarily wrong in its outcome in the particular case. That's a criticism of its opinion, not necessarily of its holding. Because it does seem clear from the opinion that there was no standardized procedure whatsoever that was in effect.
Michael J. Neimand: --Well, that is not necessarily true, because in the joint appendix he also testified: well, based on the regulations we go by, if I was going to place him under arrest for DUI, I would have to tow the car, regardless, and from there, upon towing it, we would have to do an inventory search. This is regardless of the standard. This is what--
John Paul Stevens: He would have to do an inventory search. But there is nothing in there that says he either had any duty to open containers or duty not to open them. There is nothing in the procedures he described that told him what to do when he confronted a closed container.
Michael J. Neimand: --Except for the definition of what an inventory search is. And that is what we are seeking this Court from. The--
Speaker: That is what the issue is.
Michael J. Neimand: --The issue of subjective motivation, subjective intent, was never raised below. The Florida Supreme Court never ruled on that because they found that the search, the scope of the search was unwarranted. I don't think this Court is the proper avenue to decide subjective motivation. I think that is the question that best be left for another day when the issue is presented. Thank you.
William H. Rehnquist: Thank you, Mr. Neimand. The case is submitted.