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While it is still the law that where there is probable cause only to search a closed or sealed “repository of personal effects”, the mere fact such container is placed into a vehicle does not in itself bring that container’s search within the “automobile exception,” to the warrant requirement. Carroll v. U.S., 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed.2d 543 (1925); U.S. v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) [searching locked footlockers in auto trunk]; U.S. v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).

In California v. Acevedo, 500 U.S. 565 (1982), the court rejected the holding in Sanders, 442 U.S. at 767.

“Here, as in Chadwick, the mere fact that the suitcase had been placed in the trunk of the vehicle did not render the automobile exception of Carroll applicable …it was the luggage being transported by respondent at the time of the arrest, not the automobile in which it was being carried, that was the suspected locus of the contraband. The relationship between the automobile and the contraband was surely incidental, as in Chadwick. The fact that the suitcase was resting in the trunk of the automobile at the time of respondent’s arrest does not turn this into an ‘automobile exception’ case.” Sanders, 442 U.S. at 767.

Where the probable cause relates to the vehicle itself, then officers may “conduct a probing search of compartments and containers within the vehicle” wherever they may be found. U.S. v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 2171, 72 L.Ed.2d 572, 594 (1982) [probable cause to believe a particularly described individual known as “Bandit” was selling drugs from a paper bag in the trunk of a particularly described vehicle].

“We hold that the scope of the warrantless search authorized by (the automobile exception) is no broader and no narrower than a magistrate could legitimately authorize by warrant. If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” U.S. v. Ross, 456 U.S. at 825.

See also U.S. v. Freire, 710 F.2d 1515 (11th Cir. 1983) [applying Ross retroactively]; U.S. v. Floyd, 681 F.2d 265 (5th Cir. 1982); U.S. v. Badolato, 710 F.2d 1509 (5th Cir. 1983) [where officers assisted in placing cocaine in suitcase and suitcase in trunk, they had probable cause to stop vehicle and conduct warrantless search of closed suitcase in locked trunk]; Osban v. State, 726 S.W.2d 107 (Tex.Crim.App. 1986), overruled in part by Heitman

  1. State, 815 S.W.2d 681 (Tex.Crim.App. 1991) [officer’s discovery of small amount of contraband and large amount of cash during search of passenger compartment pursuant to arrest amounted to probable cause to search truck].

Ross does not authorize general exploratory searches merely because container is located in an automobile.

See Linnett v. State, 647 S.W.2d 672 (Tex.Cr.App. 1983) [searching paper bag on front seat]; Oklahoma v. Castleberry, 678 P.2d 720 (Okla.). aff’d, 105 S.Ct. 1859 (1985) [search incident to lawful arrest did not justify search of defendant’s locked car or suitcases]; People v. Nicholson, 207 Cal. App. 3d 707 (Cal. Ct. App. 1989) [warrant requirement for containers only applies when police do not have probable cause to search the vehicle or anything within it except a particular container].

See also State v. Kock, 725 P.2d 1285 (Or. 1986) [the inherent mobility of “parked, immobile, and unoccupied” car not enough to justify warrantless search, under Oregon constitution].

But see California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985) [an automobile exception extended to stationary but operational vehicle in a public parking lot]; U.S. v. Bagley, 772 F.2d 482 (9th Cir. 1985); U.S. v. Alexander, 835 F.2d 1406 (11th Cir. 1988).


A search incident to one arrested in an automobile [where no probable cause relates to the vehicle], nevertheless, warrants a search of the entire passenger compartment under the fiction same is within the “zone” of the arrestees reach under Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1979). See also

Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1979, 26 L.Ed.2d 409 (1970).

“Our reading of the cases suggests the generalization that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within ‘the area into which an arrestee might reach in order to grab a weapon or evidentiary item.’…Accordingly, we hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident to that arrest, search the passenger compartment of that automobile.” New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768, 774-5 (1981). See also, Thornton v. U.S., 541

U.S. 615 (2004) [When a police officer makes a lawful custodial arrest of an automobile’s occupant, the Fourth Amendment allows the officer to search the vehicle’s passenger compartment as a contemporaneous incident of arrest. Once an officer determines that there is probable cause to make an arrest, it is reasonable to allow officers to ensure their safety and to preserve evidence by searching the entire passenger compartment.

A court has applied Belton’s “bright line rule” to a piece of luggage near a custodial arrestee at the police office.

U.S. v. Porter, 738 F.2d 622, 626-27 (4th Cir. 1984).

“We agree with the district court, regardless of the point at which Miss Porter’s arrest in fact occurred, that the warrantless search of her carry-on bag in the DEA office was lawful as incident to the arrest. The defendant argues that the bag was within the exclusive control of Detective Dawley after her arrest, that there were no exigent circumstances, and therefore that a warrant was necessary for Dawley to search the bag. This argument fails for two reasons. First, the Supreme Court has specifically rejected the argument. New York v. Belton, 453 U.S. 454, 461-62 (1981), abrogation recognized by Davis v. U.S., 131 S. Ct. 2419 (2012). . . . The Court has established a ‘bright-lines’ rule, see id. at 463-72, . . . that a lawful custodial arrest justifies a contemporaneous search without a warrant of the person arrested and the immediately surrounding area, id. at 457(citing Chimel v. California, 395 U.S. 752, 763 (1969)); U.S. v. Litman, 739 F.2d 137 (4th Cir. 1984) (en banc); Miss Porter had been lawfully arrested, and it is undisputed that the bag was within her reach. The Supreme Court has rejected the suggestion that more need be litigated, in particular, the issue of whether one of the reasons supporting the search-incident-to-arrest exception is present. New York v. Belton, 453 U.S. 459 (citing U.S. v. Robinson, 414 U.S. 218, 235 (1973)). We also do not believe that the bag was within the exclusive control of Detective Dawley. Again, the bag was within reach of Miss Porter, and any evidence within it was easily accessible. A primary rationale of the search-incident-to-arrest exception to the warrant requirement is that the arrestee may attempt to conceal or to destroy evidence, Chimel v. California, 395 U.S. 763 . . . and we think that even if such an inquiry were necessary the rationale of that search warrant exception is applicable in this case.

The fact that Miss Porter may have been arrested on the way to the DEA office and searched after she arrived there is irrelevant. We have upheld, as incident to arrest, a search of items within the reach of the arrestee even where the person had been arrested and driven to an FBI field office 30 minutes away before being searched. U.S. v. McEachern, 675 F.2d 618, 622 (4th Cir. 1982). Here, only 15 minutes passed between the time Miss Porter left the plane and the time her bag was searched.” Porter, 738 F.2d at 626- 27.

At least one court has extended to dwellings Belton’s “bright line” rule allowing searches of the entire passenger compartment of a vehicle, incident to the occupant’s arrest, irrespective of any reasonable fear that the arrestee might obtain a weapon or destroy evidence. State v. Murdock, 445 N.W.2d 319 (Wisc. App. 1989).


One court held that where a suspect was hand-cuffed and in custody, a warrantless search by police of a hand gun case three feet from him was not a lawful incident of arrest since the seizure was not necessary in order to disarm the defendant, protect the safety of the officers, or preserve evidence from destruction. U.S. v. Bonitz, 826 F.2d 954 (10th Cir. 1987). See also U.S. v. Arango, 879 F.2d 1501 (7th Cir. 1989) [court upheld search of vehicle even though defendant was apprehended a block away and brought back to vehicle]. Contra U.S. v. Vasey, 834 F.2d 782, 787 (9th Cir. 1987) [where search was 30 to 45 minutes after arrest and accused was hand- cuffed and placed in patrol car, same lacked “contemporanity” requirement of a search incident to arrest. Moreover, the search was not properly limited to the area within the defendant’s immediate control]. The Supreme Court in Arizona v. Gant, 556 U.S. 332 (2009) took a closer look at the rationale supporting the brite line rule. The Belton rule stemmed from the idea in Chimel that an officer is permitted to search the immediate surrounding area of the arrestee for contraband or weapons within his reach. However, to extend this rationale to the vehicle that an arrestee recently occupied when he is no longer in reach, or capable of reaching the vehicle, is a stretch the Supreme Court was no longer willing to allow. The “police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Absent these circumstances, “a search of an arrestee’s vehicle will be unreasonable unless police obtain a search warrant.” Gant, 556 U.S. at 351.



Moreover, in Bonitz, the Tenth Circuit found the fire arms agents’ claim of exigent circumstances based on their discovery of twenty-one cans of gunpowder “smack[ed] of pure unadulterated pretext.” U.S. v. Bonitz, 826 F.2d 954, 957 (10th Cir. 1987).


 For an arrest to warrant a full search incident thereto, that arrest must be “custodial” in nature. New York

  1. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), abrogation recognized by Davis v. U.S., 131 S. Ct. 2419 (2012). “Our holding today does no more than determine the meaning of Chimel’s principles in this particular and problematic content. It in no way alters the fundamental principles established in the Chimel case regarding the basic scope of searches incident to lawful custodial arrests.” Belton, 453 U.S. at 460.

Ordinary traffic stops do not involve custody for purposes of the Miranda rule. Thus, evidence of statements that driver made during roadside questioning were admissible. The case involved one police officer asking the driver a few questions and to perform a balancing test in a visible location to passing motorists. Pennsylvania v. Bruder, 488 U.S. 9, 109 S.Ct. 205, 102 L.Ed.2d 172 (1988) [per curiam].

U.S. v. Robinson, 414 U.S. 218, 220-21, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) [arresting officer “had probable cause to arrest the respondent, and he effected a full-custody arrest”]; Gustafson v. Florida, 414 U.S. 260, 262, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973) [officer “took petitioner into custody in order to transport him to the station- house”]; U.S. v. Ceballos, 812 F.2d 42 (2d Cir. 1987) [a police request that defendant accompany them to the station coupled with a refusal to allow him to drive there in car that he is authorized to drive amounts to custody and probable cause is required]; Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685, 694 (1969).

“…a lawful custodial arrest creates a situation which justifies the contemporaneous search without a warrant of the person arrested and the immediately surrounding area.” Chimel v. California, 395 U.S. at 763.

The well-reasoned opinion in U.S. v. Parr, 843 F.2d 1228 (9th Cir. 1988), explains that the prosecution’s claim that a detention based on a traffic stop was an arrest justifying a search incident thereto can backfire. The defense, taking the posture that a custodial arrest had not taken place succeeded in defeating the legality of the search. Noting that detention in a police car does not constitute an arrest per se and that traffic stops are analogous to Terry stops the court stated that:

“Although there is no ‘bright line’ for determining when a stop becomes an arrest, a distinction between stops and arrests may be drawn at the point of transporting the defendants to the police station.”

Citing cases involving various restrictive measures by police where no arrest was found, the court concluded the Parr search, where the accused was placed in the police car after a traffic stop and his auto searched, could not be upheld as one incident to an arrest.

Adams v. State, 634 S.W.2d 785, 789 (Tex.App. Austin, 1982); Thomas v. State, 572 S.W.2d 507 (Tex.Cr.App. 1980).

“The search of appellant’s automobile was not a search incident to arrest. . . . [A]ppellant was being detained while a traffic ticket was being written and was not placed under arrest until after the pills were found. Cf. Wussow v. State, 507 S.W.2d 792 (Tex.Cr.App. 1976). Appellant was not in custody at the time of the search, and thus the search was not incident to arrest for the traffic violation.” Thomas, 572 S.W.2d at 509.

“The arrest that justifies a search incident must now qualify as a ‘custodial’ one.” Christian v. State, 572 S.W.2d 507, 629 (Tex.Cr.App. 1976).

“As appellant turned left in front of [his] police vehicle, Malone noticed the rear license plate on the Pontiac had expired. Officer Malone stopped appellant to give him a traffic ticket. Appellant who was alone, got out of his car and came back towards the officer who parked behind appellant’s vehicle      He appeared nervous to [Officer] Malone and kept walking back towards his car …the officer observed a brown canvas zipper bag laying open in the front seat. Malone reached in and pulled the bag over and looked in it. The bag contained    a little black film canister. Malone removed the canister from the bag and opened it. The canister contained pills      Whatever its impact in other factual situations, we find it inapplicable in the case at bar because appellant was not in ‘custodial arrest’ at the time of the search in question.” Linnett v. State, 647 S.W.2d 672 (Tex.Crim.App. 1983).

Detention of vehicle and occupants for fifty minutes while awaiting the arrival of a drug sniffing dog was held to be minimally intrusive detention and not an illegal arrest even though no probable cause existed for the lengthy detention.  Hardy v. U.S., 855 F.2d 753 (11th Cir. 1988).

The Texas Court of Criminal Appeals has indicated that it is not at all clear that such searches would pass muster under Art. 1, Section 9 of the Texas Constitution. Morr v. State, 631 S.W.2d 517, 519 (Tex.Crim.App. 1982).

“The other issue is whether officers may search the interior of a vehicle as a routine incident to a custodial arrest for a traffic violation, even though they have no reasonable belief that the search is necessary to prevent the occupants from reaching a weapon or destroying evidence.” The panel held that they may not, following Branch v. State, 599 S.W.2d 32 (Tex.Crim.App. 1980). Branch is no longer a viable statement of Fourth Amendment law, for, while this case has been pending on rehearing, the Supreme Court has decided that such searches do not violate the Fourth Amendment. New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). But Belton does not alter our holding that such a search violates Section 9 of the Texas Bill of Rights. Beck v. State, 547 S.W.2d 266 (Tex.Cr.App. 1976) (stating “[a]ll searches incidental to arrest cannot be justified on this theory, for to do so would allow wholesale fishing expeditions whenever a legal [traffic] arrest is made”).

See also Linnett v. State, 647 S.W.2d 672 (Tex.Cr.App. 1983) [en banc].

“Appellant did not claim the intrusions are barred by our own law of search and seizure bottomed on Article I, Section 9 of the Bill of Rights and TEX. R. CRIM. P. 1.06, so we have no reason to address that question. Nor do we decide that the Belton rule is consistent with State law. Our conclusion is that the rule is not applicable to the facts of this cause.” Linnett v. State, 647 S.W.2d 672,675 (Tex.Cr.App. 1983) [en banc].


 Police may however, conduct a limited Terry-type weapons frisk of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, if the police officer has a reasonable belief, based on specific and articulable facts, which taken together with the rational inferences from those facts would warrant the officer to believe that the suspect is dangerous and may gain immediate control of weapons. Michigan v. Long, 459 U.S. 1098, 103 S.Ct. 3469, 74 L.Ed.2d 945 (1983).

“In Terry v. Ohio, 392 U.S. 1 (1968), we upheld the validity of a protective search for weapons in the absence of probable cause to arrest because it is unreasonable to deny a police officer the right ‘to neutralize the threat of physical harm, when he possesses an articulable suspicion that an individual is armed and dangerous.” id., at 24. “We did not, however, expressly address whether such a protective search for weapons could extend to an area beyond the person in the absence of probable cause to arrest. In the present case, respondent David Long was convicted for possession of marijuana found by police in the passenger compartment and trunk of the automobile that he was driving. The police searched the automobile that he was driving. The police searched the passenger compartment because they had reason to believe that the vehicle contained weapons potentially dangerous to the officers. We hold that the protective search of the passenger compartment was reasonable under the principles articulated in Terry and other decisions of this Court.” Long, 459 U.S. 1098 (1983).

“…Terry need not be read as restricting the preventive search of the person of the detained suspect.” [footnote omitted]. Long, 459 U.S.  at 3479.

“…If, while conducting a legitimate Terry search of the interior of the automobile, the officer should, as here, discover contraband other than weapons, he clearly cannot be required to ignore the contraband, and the Fourth Amendment does not require its suppression in such circumstances.” Coolidge v. New Hampshire, 403 U.S. 443, 465 (1971); Michigan v. Tyler, 436 U.S. 499, 509 (1978); Texas v. Brown, 460 U.S. 730 (1983). Long, 459 U.S. at 3481 [Powell, J., concurring].

See also New York v. Class, 475 U.S. 106 (1986).

In Class, the police had stopped the defendant for speeding and having a cracked windshield. While looking for the VIN number, officer saw the butt of a gun protruding from under the front seat. In holding the search permissible, the Court reasoned that the intrusion was minimal, there was no expectation of privacy in the VIN number, and the safety of the officers outweighed the intrusiveness.

U.S. v. Lott, 870 F.2d 778 (1st Cir. 1989) [law enforcement officer who conducts a protective search of a person or vehicle must have an actual suspicion that weapons are present. The fact that it may be later argued that an objectively reasonable officer would have been justified in conducting the search is not determinative. Rather, the conduct of the officers in the field must be evaluated, and where their conduct does not show a concern for safety, the search is not justifiable].

A police officer who, during a search of a car stopped for a traffic violation, found cash in the glove compartment and a sizeable quantity of drugs hidden behind the back-seat armrest had the probable cause required by the Fourth Amendment to arrest everyone in the car, including a front-seat passenger. The fact that the occupants were in the small space of an automobile, their denials of ownership of the drugs, and the quantities of drugs and cash involved supported a reasonable belief that all of the occupants were involved in a common drug trafficking enterprise, the court concluded. See Maryland v. Pringle, 540 U.S. 366 (2003).


 “[I]n determining when an investigative stop is unreasonably pretextual, the proper inquiry is not whether the officer could validly have made the stop but whether under the same circumstances a reasonable officer would have made the stop in the absence of an invalid purpose.” U.S. v. Smith, 799 F.2d 704, 708 (11th Cir. 1986) [emphasis added].

See U.S. v. Smith, 799 F.2d 704, 708 (11th Cir. 1986) [officers decide to follow automobile based on an inadequate drug courier profile and pulled car over for slight weaving. They then argue stop for drug search valid since they could have stopped the car to investigate whether the driver was intoxicated]; U.S. v. Kohler, 836 F.2d 885 (5th Cir. 1988) [the defendants were close to the U.S. Border coupled with the facts that the area had a history of smuggling, the defendant’s motor home changed from an open and lightly loaded vehicle to a closed and heavily loaded vehicle and the change in the defendant’s behavior to strained and agitated gave the officers a reasonable suspicion].

A traffic stop, like any other temporary investigative detention, is limited by the scope of the investigation at its inception. Thus, if an officer has acquired only reasonable suspicion or probable cause to justify a traffic violation, the officer must effectuate that legal purpose in a reasonably timely fashion. Unless the officer otherwise acquires additional reasonable suspicion for some other offense during the course of the traffic stop, he cannot delay or stall the completion of the traffic stop to secure a drug-sniffing dog or try to gain additional evidence. Rodriguez v. United States, 575 U.S. 348, 350 (2015) (“We hold that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore ‘become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission’ of issuing a ticket for the violation.” (quoting Illinois v. Caballes, 543 U.S. 405, 407 (2005))).


 Without describing or defining what procedures or guidelines are required, the Supreme Court recently approved roadside “sobriety checkpoints, conducted pursuant to “guidelines”, noting that same are “minimally intrusive” and serve a “grave and legitimate interest” of the state, indistinguishable from the border stops approved in U.S. v. Martinez-Fuerte, 428 U.S. 543 (1976).

Michigan Department of State Police v. Sitz, 496 U.S. 444, 110 L.Ed.2d 412, 110 S.Ct. 2481 (1990); State

  1. Van Natta, 805 S.W.2d 40, 42 (Tex.App.-Ft. Worth 1991) [state must prove effectiveness of DWI roadblocks in preventing accidents caused by drunk drivers otherwise the roadblock will be a Fourth Amendment violation]; Meeks v. State, 692 W.2d 504 (Tex.Cr.App. 1985) [a roadblock license check will be permitted only where the “sole purpose in stopping all traffic on the highway …was …to check driver’s licenses”]; State v. Barcia, 562 A.2d 246 (N.J. 1989) [roadblock stopping every twentieth car to catch cocaine purchasers violated U.S. and New Jersey Constitutions — only 59 vehicles were directed away from the main thoroughfare and only nine persons were arrested]; Webb v. State, 739 S.W.2d 802 (Tex.Cr.App. 1987); Green v. State, 744 S.W.2d 313 (Tex.App.-Dallas, 1988) [brief visits between drivers of vehicles in parking lot do not amount to reasonable suspicion].

Contra Illinois v. Lidster, 540 U.S. 419 (2004) [brief stops of motorists at highway checkpoint where police are seeking information about a recent crime on that highway are not unreasonable].


 One Court has held that officers may “impound” and thoroughly “inventory” a vehicle legally parked in a “company” parking lot, incident to the owner’s arrest inside the adjoining business premises. U.S. v. Kornegay, 885 F.2d 713 (10th Cir. 1989).

However, that same Court has held that where:

  1. Arresting officers know the identity of the arrestee and where he or she lives,
  2. Arrestee is accompanied by another capable of securing, taking custody, or removing the vehicle,
  3. Vehicle’s place of origin is known,
  4. Vehicle’s owner will be able to return in the near future to retrieve the

An “inventory search” may not be conducted, since the underlying justification for permitting such an intrusion, that of protecting the citizen’s property and the police from claims of pilferage, are not present.

U.S. v. Pappas, 735 F.2d 1232 (10th Cir. 1984) [searching vehicle parked in lounge parking lot].


 It would seem an inventory search of a vehicle should be warranted only when the driver is arrested… and no other person is available to drive the vehicle or “no other alternatives are available other than impoundment to insure the protection of the vehicle.”

South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); U.S. v. Lyons, 706 F.2d 321

(D.C. Cir. 1983) [warrantless search of closet could not be justified as “inventory” search nor search incident to arrest]; U.S. v. Laing, 708 F.2d 1568 (11th Cir. 1983); U.S. v. Griffin, 729 F.2d 475 (7th Cir.), cert. denied, 105 S.Ct. 117 (1984) [a car impounded for traffic violation may be searched to prevent hazard to passing motorists];

U.S. v. Long, 705 F.2d 1259 (10th Cir. 1983); Smyth v. State, 634 S.W.2d 721 (Tex.Cr.App. 1982); Benavides v. State, 600 S.W.2d 809, 811 (Tex.Cr.App. 1980) [“[a]n automobile may be impounded if …no alternatives are available other than impoundment to ensure the protection of the vehicle”]; Evers v. State, 576 S.W.2d 46 (Tex.Cr.App. 1978); Christian v. State, 592 S.W.2d 625 (Tex.Cr.App. 1980); Gill v. State, 625 S.W.2d 307 (Tex.Cr.App. 1981).

“A true inventory search of an automobile, occurring outside the legal concepts of probable cause or search incident to a lawful arrest, is just that and nothing more. It means that, using a standard inventory form prepared pursuant to standard police procedure, a police officer or his agent lawfully inventories the contents of a lawfully impounded motor vehicle. E.g. Daniels v. State, 600 S.W.2d 813 (1980); Benavides v. State, 600 S.W.2d 809 (1980). Because the officer or his agent is doing nothing more than taking stock of loose items of personal property found in the vehicle, items of personal property found in plain view or in unlocked compartments of the vehicle may be seized.” Gill, 625 S.W.2d at 319.

U.S. v. Judge, 864 F.2d 1144 (5th Cir. 1989) [police may open closed containers in an inventory search of an automobile if they are following standard procedures that mandate the opening of such containers in every impounded vehicle], Clark v. State, 643 S.W.2d 723 (Tex.Crim.App. 1982) [so-called inventory search was illegal where vehicle was in residential area, could have been easily locked, and did not need safekeeping]; Rodriguez v. State, 644 S.W.2d 200 (Tex.App. — Amarillo, 1982) [so-called inventory search was illegal where there was no connection between defendant’s arrest and impoundment of his car]; See also Higgins v. State, 422 So.2d 81, 82 (Fla. 1982) [“an arresting officer must advise an arrestee of possible alternatives to impoundment”]; Randall v. State, 656 S.W.2d 487 (Tex.Crim.App. 1983) [“[f]or an inventory to be legal, the impoundment must be lawful”].

However, the Texas Court of Criminal Appeals has approved the opening of locked glove compartments and trunks with a key as part of a routine inventory, so long as no force is used to gain access. Kelley v. State, 677 S.W.2d 34 (Tex.Cr.App. 1984); Stephens v. State, 677 S.W.2d 42 (Tex.Cr.App. 1984); Guillett v. State, 677 S.W.2d 46 (Tex.Cr.App. 1984).


 In Florida v. Meyers, 466 U.S. 380, 104 S.Ct. 1852, 80 L.Ed.2d 381 (1984) [per curiam], the Supreme

Court reaffirmed “the teaching of Michigan v. Thomas, 458 U.S. 259, 102 S.Ct. 3079, 73 L.Ed.2d 750 (1982) and prior decisions that a vehicle may be searched under the ‘automobile exception’ even after it has been immobilized and reduced to police custody.” The Court reiterated that Michigan upheld a warrantless search of an automobile even though the car was already in police custody [no mobility] and even though a prior inventory search had already been made. See Michigan v. Thomas, 458 U.S. 259, 102 S.Ct. 3029 (1982). See also U.S. v. Iredia, 866 F.2d 114 (5th Cir. 1989) [under the plain view doctrine].



 The Supreme Court has approved impounding and inventorying vehicles where their operators are taken into custody, so long as same is not for the “sole” purpose of general criminal investigation, and is accomplished according to previously established departmental directives.

“In the present case, as in Opperman and Lafayette, there was no showing that the police, who were following standardize procedures, acted in bad faith or for the sole purpose of investigation. In addition, the governmental interests justifying the inventory searches in Opperman and Lafayette are nearly the same as those which are obtained here. In each case, the police were potentially responsible for the property taken into their custody. By securing the property, the police protected the property from unauthorized interference. Knowledge of the precise nature of the property helped guard against claims of theft, vandalism, or negligence. Such knowledge also helped to avert any danger to police or others that may have been posed by the property.” Colorado v. Bertine, 479 U.S. 367, 372-3, 107 S.Ct. 738, 93 L.Ed.2d 739, 748 (1987).

The Supreme Court, however, required that the police be following a previously prescribed “police regulation” for inventorying vehicles.

“We conclude that here, as in Lafayette, reasonable police regulations relating to inventory procedures administered in good faith satisfy the Fourth Amendment, even though courts might, as a matter of hindsight be able to devise equally reasonable rules requiring a different procedure.” Bertine, 479 U.S. at 374.


 However, the Court has insisted that there be a real policy or regulation and that same be directed at producing an inventory, not an exploratory criminal investigation. In Florida v. Wells, 495 U.S. 1, 109 L.Ed.2d 1, 110 S.Ct. 1632 (1990), a defendant was stopped for speeding and arrested for DWI. Drug related items were subsequently found in the interior of the auto. The inventory search was not sufficiently regulated to satisfy the Fourth Amendment therefore evidence found in locked suitcase was subject to suppression.

“Our view that standardized criteria …or established routine …must regulate the opening of containers found during inventory searches, is based upon the principle that an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence. The policy or practice governing inventory searches should be designed to produce an inventory. The individual officer must not be allowed so much latitude that inventory searches are turned into ‘a purposeful and general means of discovering evidence of crime’…” Florida v. Wells, 495 U.S. 1, 109 L.Ed.2d 1, 110 S.Ct. 1632 (1990) [citations omitted].

See also U.S. v. Young, 825 F.2d 60 (5th Cir. 1987) [officers followed established local police and DEA regulations; no evidence that search was a pretext]; U.S. v. Hahn, 922 F.2d 243 (5th Cir. Jan. 16, 1991) [IRS agents had not promulgated standard guidelines for conducting an inventory search, therefore their unknowing compliance with local police department guidelines did not validate the search under Florida v. Wells. To be a valid inventory search the IRS agents must follow their own standard procedure].

But see U.S. v. Woolbright, 831 F.2d 1390 (8th Cir. 1987) [even though standard procedures followed and search was seven hours after arrest the search was invalid]; Commonwealth v. Sullo, 532 N.E.2d 1219 (Mass. App. Ct. 1989) [perusal of an arrestee’s papers was not a proper inventory search where the search was not conducted pursuant to any established procedure. The reading of the papers extended beyond what was necessary to protect the property and insure safety and where it was apparent the officer was using the inventory as a pretext to search for evidence of uncharged crime].

The Fifth Circuit, however, seems to depart from the Bertine rationale by allowing a seizure, which was not the product of a standard procedure inventory search, based on the bad testimony of an officer that earlier, during a Belton search, it was “immediately apparent” to him that the item was incriminating. The officer failed to explain why the item [address book] had not been seized at that earlier time. U.S. v. Iredia, 866 F.2d 114, 119 (5th Cir. 1989).

“If the address book’s evidentiary value was noted at the time of the Belton search, its seizure would be justified.”

U.S. v. Iredia, 866 F.2d at 119.

See also U.S. v. Seals, 987 F.2d 1102 (5th Cir. 1993) [combining inventory search with the principle of inevitable discovery to permit the use of evidence obtained from the search of a car was not permissible under search incident to arrest or the Acevedo doctrine].


 U.S. v. Reyes, 792 F.2d 536 (5th Cir. 1986).

An informant’s tip sufficed to establish probable cause for warrantless search of defendant’s car where:

  • tip was based on informant’s personal observation,
  • agent had known informant for over 2 years and considered him reliable,
  • the tip included numerous detailed facts, and
  • much of the tip was corroborated by the

And, while there was no information as to the exact location of the contraband, probable cause to search a vehicle extends to any portion of that vehicle or containers located therein, including a zippered bag found containing another locked nylon bag in which the contraband was found.


 The Supreme Court held that “innocent”, innocuous behavior may be sufficient to imbue an “anonymous tip” with sufficient indicia of reliability to constitute “reasonable suspicion” for an “investigative stop”. Alabama v. White, 496 U.S. 325, 110 L.Ed.2d 301, 110 S.Ct. 2412 (1990).

However, an anonymous tip alleging that someone is on his way to kill someone else can be enough to justify a police detention even if the police do not corroborate the reliability of the tip to the extent ordinarily required by the Fourth Amendment to justify an investigative detention. The court held that the emergency aid doctrine justified a vehicle stop on the basis of an anonymous tip that would not have provided reasonable suspicion under Florida v. J.L., 529 U.S. 266 (2000).

Also see U.S. v. Hernandez, 477 F.3d 210 (5th Cir. 2007) [in which an anonymous tip that a red truck smuggling aliens would be at a certain location, it was not sufficient corroboration that a red truck was seen in the vicinity. 477 F.3d 210 (5th Cir. 2007).


 What the Supreme Court did not disturb in Ross was Chadwick and Saunders requirements that a warrant be obtained prior to searching any container reduced to the effective control of law enforcement officers where no automobile or other exception to the warrant requirement exists.

“In [Chadwick] the Court reaffirmed the general principle that closed packages and containers may not be searched without a warrant.” U.S. v. Ross, 456 U.S. 798, 812, 102 S.Ct. 2157, 72 L.Ed.2d 572, 585 (1982).

“First, it is unquestioned that to search Royer’s luggage and in the absence of probable cause and exigent circumstances, the validity of the search depends on Royer’s purported consent.” Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).


 Routine administrative procedure of inventorying and/or searching the personal effects of a person incident to being booked and jailed at the police STATION HOUSE after his or her lawful arrest is constitutional. Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983) [allowing search of a “purse-type” “shoulder bag” carried by the arrestee “upon reaching [the] police station but prior to being placed in confinement”].

“The governmental interests underlying a STATION HOUSE search of the arrestee’s person and possessions may in some circumstances be even greater than those supporting a search immediately following arrest.” Lafayette, 462 U.S. at 645.

Interestingly, the Chief Justice recognized that it “is not unheard of for persons employed in police activities to steal property taken from arrested persons.” Lafayette, 462 U.S. 646.

See also Lockhart v. McCotter, 782 F.2d 1275, 1280 (5th Cir. 1986) [personal effects in arrestee’s property envelope already inventoried, not protected against warrantless “second look”].


 State v. Small, 483 So.2d 783 (Fla.App. 1985)               [inventory search results are inadmissible if officer does not advise driver of the right to provide a reasonable alternative to impoundment].

But see Perez v. State, 103 S.W.3d 466 (Tex. App. -San Antonio 2003) [even though police were not impounding car, cocaine discovered in dollar bill in wallet while police were securing car on side of road was properly seized because police had authority to impound the vehicle and were performing “caretaking function”].


 Nor did the Court in Ross overrule the holding in Robbins that “all containers are equally protected by the Fourth Amendment unless their contents are in plain view.”

“This rule applies equally to all containers, as indeed we believe it must. One point on which the Court was in virtually unanimous agreement in Robbins was that a constitutional distinction between “worthy” and “unworthy” containers would be improper. Even though such a distinction perhaps could evolve in a series of cases in which paper bags, locked trunks, lunch buckets, and orange crates were placed on one side of the line or the other, the central purpose of the Fourth Amendment forecloses such a distinction. For such as the most frail cottage in the kingdom is absolutely entitled to the same guarantees of privacy as the most majestic mansion so also may a traveler who carries a toothbrush and a few articles of clothing in a paper bag or knotted scarf claim an equal right to conceal his possessions from official inspection as the sophisticated executive with the locked attached case.” U.S. v. Ross, 456 U.S. at 822.

In California v. Acevedo, 114 L.Ed.2d 619, 111 S.Ct. 1982 (1991), the Court extended Ross to allow the warrantless search of all containers that could accommodate the items that officers had probable cause to believe were in the vehicle. Noting that in Chadwick, the Government had not relied upon the automobile exception to the warrant requirement3, the Acevedo Court adopted a “clear-cut rule,” eliminating any warrant requirement for closed containers located anywhere in a vehicle lawfully searched.

Acknowledging that the Court appears to have abandoned its responsibility to check Executive abuses, Justice Stevens noted in dissent:

“[D]ecisions like the one the Court makes today will support the conclusion that this Court has become a loyal foot soldier in the Executive’s fight against crime.”…’Moreover, the mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment. The investigation of crime would always be simplified if warrants were unnecessary. But the Fourth Amendment reflects the view of those who wrote the Bill of Rights that the privacy of a person’s home and property may not be totally sacrificed in the name of maximum simplicity in enforcement of the criminal law.'” California v. Acevedo, [emphasis supplied] [quoting Mincey v. Arizona, 437 U.S. 385, 393 (1978)].

The distinction made between containers “immediately associated with the person of the arrestee” as opposed to “repositories of personal effects” which may be utilized to transport items was not addressed in Acevedo.

 “Once law enforcement officers have reduced luggage or other personalty not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.” [emphasis added]. U.S. v. Chadwick, 433 U.S. at 15.

See U.S. v. Porter, 738 F.2d 622 (4th Cir. 1984) [the fact of lawful arrest, without more justifies a warrantless search of the arrestee’s bag]; Stewart v. State, 611 S.W.2d 434 (Tex.Cr.App. 1981) [searching woman’s purse].

“As a matter of common usage, a purse is an item carried on an individual’s person in the sense that a wallet or items found in pockets are, and unlike luggage that might be characterized as a repository for personal items when one wishes to transport them, a purse is carried with a person at all times.” Stewart, 611 S.W.2d at 438.

“A ‘full search of the person’, however, has recently been held, under the Chadwick progeny to exclude briefcases, United States v. Presler, 610 F.2d 1206 (4th Cir. 1979), attache cases, Araj v. State, 592 S.W.2d 603 (Tex.Cr.App. 1979), guitar cases, United States v. Bella, 605 F.2d 160 (5th Cir. 1979), cardboard boxes closed and sealed with tape, United States v. Dien, 615 F.2d 10 (2d Cir. 1980), unlocked backpacks, United States v. Meier, 602 F.2d 253 (10th Cir. 1979), and duffel bags, United States v. Johnson, 588 F.2d 147 (5th Cir. 1979), but has been held [to] include wallets. see U.S. v. Passaro, 624 F.2d 938 (9th Cir. 1980); U.S. v. Ziller, 623 F.2d 562 (9th Cir. 1980); U.S. v. Matthews, 615 F.2d 79 (10th Cir. 1980); U.S.

  1. Phillips, 607 F.2d 808 (8th Cir. 1979); U.S. v. Castro, 596 F.2d 674 (5th Cir. 1979).” Stewart, 611 S.W.2d at 438.

3     The Court rejected the Government’s argument that “the search of movable luggage could be considered analogous to the search of an automobile”.

See U.S. v. Carnejo, 598 F.2d 554 (9th Cir. 1979) [purse]; U.S. v. Rigaks, 630 F.2d 364 (5th Cir. 1980) [zippered leather case]; Dunn v. State, 653 P.2d 1071 (Alaska App. 1982) [“[c]losed containers which are not, by their nature, immediately associated with the person of the arrestee, but which are merely seized from the arrestee’s proximity at the time of the arrest, cannot be opened and inspected without a search warrant after they have been removed from the arrestee’s control and secured by the police”].


 Police may not search a saddle bag on a motorcycle without a warrant where stop is an investigatory one for traffic violations.  U.S. v. Vinson, 662 F. Supp. 431 (M.D. Tenn. 1987).

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