Inventory Searches: The Factual Predicate

I have taught Criminal Procedure—the law of search and seizure—several times.  It is a fascinating subject.  I find the law of inventory searches particularly interesting.  Unfortunately, I have observed many cases where key evidence was suppressed because the prosecutor did not properly elicit the requisite factual predicate for the search itself.  People v. Farquharson (Sup. Ct. Bronx Co. 1/26/2009) is one such case.  In a written decision posted this week, Justice Dawson suppressed evidence recovered during a purported inventory search.

The case was a simple DWI.  Highway unit officers observed the defendant driving erratically.  When they pulled him over, they detected the usual signs of intoxication and observed marijuana in plain view.  They arrested the defendant.  During a subsequent search of the vehicle, the officers discovered additional drugs.

The sole testimony regarding the inventory procedure was summarized by the court:

According to [Police Officer] Wiley, the standard police procedure in such a situation
is to take custody of the vehicle by towing it and to perform an
inventory search of the vehicle. Id. Wiley testified that an
inventory search of the vehicle is done to make sure there are no
valuables left unsecured in the vehicle for which Wiley would be
responsible. Id. Wiley recovered the two bags of marihuana from
the vehicle and then, during an alleged inventory search of the
Pathfinder, he seized an additional six bags of marihuana from a radio
box on the rear seat. Id. There was no other testimony
regarding police procedures for inventory searches, or whether they
were followed in this case. After the marihuana was recovered, Vickery
testified that the police continued to search the car for more drugs or

The court suppressed the second set of drugs because the People had not established that the police were conducting a proper inventory search:

In People v. Johnson, 1 NY3d 252 (2003),
the Court of Appeals held that the People had the "burden of
establishing a valid inventory search" at a suppression hearing, and
that the purposes of an inventory search were threefold: "to protect
the property of the defendant, to protect the police against any claim
of lost property, and to protect police personnel from any dangerous
instruments." Id. at 256 (citation omitted). To meet that
burden, the People should produce evidence demonstrating: (1) the
existence of a departmental policy regarding inventory searches, (2)
that the policy is "rationally designed to meet the objectives that
justify inventory searches," and (3) that the particular search was
conducted properly and in compliance with established procedures. See id.Id.
The Court concludes that the People did not meet their burden of
establishing the existence of any of the foregoing. Indeed, Vickery
rather candidly testified that after the marihuana was recovered, "we
searched the vehicle more for any kind of drugs of weapons[]" and
"that's why the car was searched more." See, Hearing Minutes at p. 40. This is exactly the type of "general rummaging . . . to discover incriminating evidence" that Johnson prohibits. See Johnson, 1 NY3d at 256 (internal quotation marks and citation omitted); see also People v. Gomez,
50 AD3d 407, 408 (1st Dept.) (suppressing physical evidence recovered
pursuant to alleged inventory search because the People failed to
establish compliance with Johnson), lv. to appeal granted, 2008 NY Slip Op. 74219(U) (June 10, 2008).
Further, the "hallmark" of a real inventory search is the creation of a meaningful inventory list of the vehicle's contents.

In order to meet the Johnson standard, prosecutors should:

  • Introduce into evidence the relevant police department's inventory search procedure.  The NYPD's is contained in its Patrol Guide.  A certified copy of the section on inventory searches should be introduced into evidence as People's Exhibit #1.  It is the most important piece of evidence at a suppression hearing where the People intend to rely on the inventory search exception.
  • Determine whether the police followed the procedure.  If the officers substantially deviated from the policy, it is likely the evidence will be suppressed.  However, minor deviations are not necessarily going to result in suppression.  I argued, for example, in People v. Moya that the police were justified in doing an on-the-scene search, rather than at the impound lot, because they had already discovered at least one drug trap and the car was blocking a bus stop and needed to be moved immediately.  There was insufficient time to wait for a tow truck.  For the officer's safety, he was justified in conducting the inventory search on the scene.  The First Department upheld the search.
  • Elicit from the police officer how he or she followed the procedure.  Have the officer discuss the training he received at the Police Academy concerning inventory searches.
  • Elicit from the police officer why he or she conducted the search. 
  • Introduce into evidence the inventory form that was created.  The NYPD uses a special voucher for vehicles.  It must be introduced into evidence.  If it was not created, the case will likely fall outside of the inventory search exception. 

In short, this is not an area in the police officer's direct examination that can be quickly glossed over.

In addition, police departments must ensure that their officers receive training on:

  • the reasons for the inventory search exception (officer safety, safeguarding valuables, protecting against false claims of loss);
  • the importance of conducting a thorough search.  After all, the purpose is not just to find weapons but also to locate valuables that should be inventoried;  and
  • how to fill out the department's inventory form.


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