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Search and Seizure for Police and Prosecutors

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III. Inventory Search of a Person

 

  1. Inventory search of a person.
    1. Person searched must be lawfully arrested or detained.
    2. Search must be conducted pursuant to established regulations.
      1. State must establish the existence of standard inventory search procedures.
      2. State must establish that the standard procedures were followed.
    3. Search must be reasonable.
      1. State must establish a valid purpose for the standard inventory search procedures.
        1. To protect the arrestee’s property,
        2. To protect police against claims of lost or stolen property, or
        3. To protect the police or others against danger.
      2. The subjective purpose of the police officer conducting the search is irrelevant if a proper objective purpose exists.
A person who has been lawfully arrested is subject to an inventory search during booking. 39 Such a search includes the authority to open and search containers found on the person or in the person’s clothing at the time of arrest or during booking.40 Items found in the arrestee’s vicinity, but not in the arrestee’s possession, at the time of arrest may not be seized or searched under the inventory search exception. 41

“Inventory searches ‘are a well-defined exception to the warrant requirement of the Fourth Amendment.'”42 However, like all warrantless searches, inventory searches are presumed to be unreasonable.43 As a result, the State bears the burden of establishing the validity of an inventory search.44 Probable cause to believe evidence of a crime will be found is not required to justify an inventory search.45 Rather, an inventory search is valid if it meets the following three requirements: (1) the person to be searched must be in the custody or control of the police; (2) the inventory search must be conducted pursuant to established police regulations; and, (3) the search must be reasonable under the circumstances.46

A person who has been lawfully arrested is in the custody and control of the police. Therefore, to meet the first requirement of a valid inventory search, the State must establish that the defendant was lawfully arrested. Similarly, a search of a person taken into protective custody, but not arrested, meets the first requirement of a valid inventory search.47

The second requirement of a valid inventory search – that the search be conducted pursuant to established police regulations – is met by establishing that the agency responsible for detaining the arrestee (either the police department or the jail) has established procedures for searching persons arrested and booked into jail and that those procedures were followed.48 Prosecutors relying on the inventory search exception in defending against a motion to suppress should be careful to establish the existence of regulations, the details of the regulations, and that those regulations were actually followed.49 The regulations or standard procedures do not need to be written as long as the procedures are well established and consistently followed.50

Finally, to be valid, an inventory search must be reasonable. “An inventory search is reasonable if it is made to protect the arrestee’s property, to protect police against claims of lost or stolen property, or to protect police from potential danger.”51 However, the fact that the reasonableness of the inventory search is based on the purpose for the search does not mean the reasonableness is determined by the police officer’s subjective understanding of the purpose for the search.52 Rather, the purpose for the established procedures of an inventory search must be to protect the arrestee’s property, to protect the police against claims of lost or stolen property, or to protect police from danger. Thus, the State must establish, not only the existence of the inventory search procedures and the use of those procedures in the case at hand, but also the purpose of those procedures.53 If those facts are established, the officer’s subjective suspicion that contraband will be found will not render an inventory search unreasonable.54

ENDNOTES

39 State v. Gutierrez, 2011-NMSC-024, ¶ 31, 150 N.M. 232, 258 P.3d 1024 (quoting United States v. Edwards, 415 U.S. 800, 803-06 (1974)); see also State v. Shaw, 1993-NMCA- 016, ¶ 17, 115 N.M. 174, 848 P.2d 1101; State v. Johnson, 1996-NMCA-117, ¶ 15, 122 N.M. 713, 930 P.2d 1165.

40 Johnson, 1996-NMCA-117, ¶¶ 15, 19 (Life Savers candy container); Shaw, 1993-NMCA-016, ¶ 16 (cigarette package); State v. Boswell, 1991-NMSC-004, ¶ 13, 111 N.M. 240, 804 P.2d 1059 (wallet given to police at time of arrest, but left at the scene of the arrest, could be retrieved and opened later during booking at the police station).

41 State v. Davis, 2016-NMCA-073, ¶¶ 10-11, 387 P.3d 274, cert. granted, 2016-NMCERT-07.

42 Shaw, 1993-NMCA-016, ¶ 5 (quoting Colorado v. Bertine, 479 U.S. 367, 371 (1987)).

43 Id.

44 Id.; State v. Romero, 2001-NMCA-046, ¶ 15, 130 N.M. 579, 28 P.3d 1120.

45 Boswell, 1991-NMSC-004, ¶ 11.

46 In re Jeff M., 1999-NMCA-045, ¶ 14, 127 N.M. 87, 977 P.2d 352; State v. Davis, 2016-NMCA-073, ¶ 9, 387 P.3d 274, cert. granted, 2016-NMCERT-07.

47 Johnson, 1996-NMCA-117, ¶ 17.

48 See In re Jeff M., 1999-NMCA-045, ¶¶ 19, 23 (second requirement met by testimony of officer that the inventory search of the vehicle was conducted pursuant to standard operating procedures; but remanding on issue of reasonableness of opening folded newspaper because trial court failed to determine whether the paper was opened pursuant to established procedure).

49 See Davis, 2016-NMCA-073, ¶ 14.

50 Id. ¶ 15.

51 Johnson, 1996-NMCA-117, ¶ 15; see also State v. Ruffino, 1980-NMSC-072, ¶ 5, 94 N.M. 500, 612 P.2d 1311.

52 In re Jeff M., 1999-NMCA-045, ¶ 21.

53 Id.

54 Id.