South Dakota v. Opperman/Concurrence Powell

MR. JUSTICE POWELL, concurring.

While I join the opinion of the Court, I add this opinion to express additional views as to why the search conducted in this case is valid under the Fourth and Fourteenth Amendments. This inquiry involves two distinct questions: (i) whether routine inventory searches are impermissible, and (ii) if not, whether they must be conducted pursuant to a warrant. [p377]

I
The central purpose of the Fourth Amendment is to safeguard the privacy and security of individuals against arbitrary invasions by government officials. See, e.g., United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975); Camara v. Municipal Court, 387 U.S. 523, 528 (1967). None of our prior decisions is dispositive of the issue whether the Amendment permits routine inventory "searches" Of automobiles. Resolution of this [p378] question requires a weighing of the governmental and societal interests advanced to justify such intrusions against the constitutionally protected interest of the individual citizen in the privacy of his effects. United States v. Martinez-Fuerte, post at 555; United States v. Brignoni-Ponce, supra at 878-879; United States v. Ortiz, 422 U.S. 891, 892 (1975); Cady v. Dombrowski, 413 U.S. 433, 447 8 (1973); Terry v. Ohio, 392 U.S. 1, 20-21 (1968). ''Cf. Camara v. Municipal Court, supra'' at 534-535. As noted in the Court's opinion, see ante at 369, three interests generally have been advanced in support of inventory searches: (i) protection of the police from danger; (ii) protection of the police against claims and disputes over lost or stolen property; and (iii) protection of the owner's property while it remains in police custody.

Except in rare cases, there is little danger associated with impounding unsearched automobiles. But the occasional danger that may exist cannot be discounted entirely. See Cooper v. California, 386 U.S. 58, 61-62 (1967). The harmful consequences in those rare cases may be great, and there does not appear to be any effective way of identifying in advance those circumstances or classes of automobile impoundments which represent a greater risk. Society also has an important interest in minimizing the number of false claims filed against police, since they may diminish the community's respect for law enforcement generally and lower department morale, thereby impairing the effectiveness of the police. It [p379] is not clear, however, that inventories are a completely effective means of discouraging false claims, since there remains the possibility of accompanying such claims with an assertion that an item was stolen prior to the inventory or was intentionally omitted from the police records.

The protection of the owner's property is a significant interest for both the policeman and the citizen. It is argued that an inventory is not necessary, since locked doors and rolled-up windows afford the same protection that the contents of a parked automobile normally enjoy. But many owners might leave valuables in their automobile temporarily that they would not leave there unattended for the several days that police custody may last. There is thus a substantial gain in security if automobiles are inventoried and valuable items removed for storage. And, while the same security could be attained by posting a guard at the storage lot, that alternative may be prohibitively expensive, especially for smaller jurisdictions.

Against these interests must be weighed the citizen's interest in the privacy of the contents of his automobile. Although the expectation of privacy in an automobile is significantly less than the traditional expectation of privacy associated with the home, United States v. Martinez-Fuerte, post at 561-562; United States v. Ortiz, supra at 896 n. 2; see Cardwell v. Lewis, 417 U.S. 583, 590-591 (1974) (plurality opinion), the unrestrained search [p380] of an automobile and its contents would constitute a serious intrusion upon the privacy of the individual in many circumstances. But such a search is not at issue in this case. As the Court's opinion emphasizes, the search here was limited to an inventory of the unoccupied automobile, and was conducted strictly in accord with the regulations of the Vermillion Police Department. Upholding searches of this type provides no general license for the police to examine all the contents of such automobiles.

I agree with the Court that the Constitution permits routine inventory searches, and turn next to the question whether they must be conducted pursuant to a warrant. [p381]

II
While the Fourth Amendment speaks broadly in terms of "unreasonable searches and seizures," the decisions of this Court have recognized that the definition of "reasonableness" turns, at least in part, on the more specific dictates of the Warrant Clause. See United States v. United States District Court, 407 U.S. 297, 315 (1972); Katz v. United States, 389 U.S. 347, 356 (1967); Camara v. Municipal Court, 387 U.S. at 528. As the Court explained in Katz v. United States, supra at 357,


 * [s]earches conducted without warrants have been held unlawful "notwithstanding facts unquestionably showing probable cause," Agnello v. United States, 269 U.S. 20, 33, for the Constitution requires "that the deliberate, impartial judgment of a judicial officer . . . be interposed between the citizen and the police. . . ." Wong Sun v. United States, 371 U.S. 471, 481-482.

Thus, although


 * [s]ome have argued that "[t]he relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable," United States v. Rabinowitz, 339 U.S. 56, 66 (1950),

"[t]his view has not been accepted." United States v. United States District Court, supra at 315, and n. 16. See Chimel v. California, 395 U.S. 752 (1969). Except in a few carefully defined classes of cases, a search of private property without valid consent is "unreasonable" unless it has been authorized by a valid search warrant. See, e.g., Almeida-Sanchez v. United States, 413 U.S. 266, 269 (1973); Stoner v. California, 376 U.S. 483, 486 (1964); [p382] Camara v. Municipal Court, supra at 528; United States v. Jeffers, 342 U.S. 48, 51 (1951); Agnello v. United States, 269 U.S. 20, 30 (1925).

Although the Court has validated warrantless searches of automobiles in circumstances that would not justify a search of a home or office, Cady v. Dombrowski, 413 U.S. 433 (1973); Chambers v. Maroney, 399 U.S. 42 (1970); Carroll v. United States, 267 U.S. 132 (1925), these decisions establish no general "automobile exception" to the warrant requirement. See Preston v. United States, 376 U.S. 364 (1964). Rather, they demonstrate that, "‘for the purposes of the Fourth Amendment, there is a constitutional difference between houses and cars,'" Cady v. Dombrowski, supra at 439, quoting Chambers v. Maroney, supra at 52, a difference that may, in some cases, justify a warrantless search.

The routine inventory search under consideration in this case does not fall within any of the established exceptions to the warrant requirement. But examination of the interests which are protected when searches are [p383] conditioned on warrants issued by a judicial officer reveals that none of these is implicated here. A warrant may issue only upon "probable cause." In the criminal context, the requirement of a warrant protects the individual's legitimate expectation of privacy against the overzealous police officer.


 * Its protection consists in requiring that those inferences [concerning probable cause] be drawn by a neutral and detached magistrate, instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.

Johnson v. United States, 333 U.S. 10, 14 (1948). See, e.g., United States v. United States District Court, supra at 316-318. Inventory searches, however, are not conducted in order to discover evidence of crime. The officer does not make a discretionary determination to search based on a judgment that certain conditions are present. Inventory searches are conducted in accordance with established police department rules or policy, and occur whenever an automobile is seized. There are thus no special facts for a neutral magistrate to evaluate.

A related purpose of the warrant requirement is to prevent hindsight from affecting the evaluation of the reasonableness of a search. See United States v. Martinez-Fuerte, post at 565; ''cf. United States v. Watson'', 423 U.S. 411, 455 n. 22 (1976) (MARSHALL, J., dissenting). In the case of an inventory search conducted in accordance with standard police department procedures, there is no significant danger of hindsight justification. The absence of a warrant will not impair the effectiveness of post-search review of the reasonableness of a particular inventory search.

Warrants also have been required outside the context of a criminal investigation. In Camara v. Municipal Court, the Court held that, absent consent, a warrant was necessary to conduct an area-wide building code inspection, [p384] even though the search could be made absent cause to believe that there were violations in the particular buildings being searched. In requiring a warrant, the Court emphasized that


 * [t]he practical effect of [the existing warrantless search procedures had been] to leave the occupant subject to the discretion of the official in the field,

since


 * when [an] inspector demands entry, the occupant ha[d] no way of knowing whether enforcement of the municipal code involved require[d] inspection of his premises, no way of knowing the lawful limits of the inspector's power to search, and no way of knowing whether the inspector himself [was] acting under proper authorization.

387 U.S. at 532. In the inventory search context, these concerns are absent. The owner or prior occupant of the automobile is not present, nor, in many cases, is there any real likelihood that he could be located within a reasonable period of time. More importantly, no significant discretion is placed in the hands of the individual officer: he usually has no choice as to the subject of the search or its scope. .

In sum, I agree with the Court that the routine inventory search in this case is constitutional.