Written by attorney Charles B. Frye

Inventory Searches of Motor Vehicles in Texas

This general memorandum should provide you a basic understanding of the area of law defining proper "inventory searches" of motor vehicles by law enforcement officers. Should you have questions about how a search of your vehicle may affect your legal rights – or how it may affect your rights in a pending criminal case – you should consult with an experienced criminal defense attorney. Generally, law enforcement authorities who have lawfully acquired possession of a vehicle have the right to inventory its contents as part of their "caretaking responsibility." Often, law enforcement authorities use the "caretaking responsibility" as an excuse to get around the probable cause and warrant requirements for searches. The issue of probable cause is irrelevant to a true inventory search. This is because the supposed "good-faith administration" of "reasonable police regulations" relating to inventory procedures satisfies the requirements of the Fourth Amendment to the United States Constitution. Although probable cause is not required because an inventory search serves purposes other than criminal investigation, an inventory search supposedly may not be used by the police as a "ruse for a general rummaging." An inventory search is reasonable only if conducted for purposes of an inventory and not as an investigatory tool to produce or discover incriminating evidence. While conducting an inventory, the police may seize any items of contraband or evidence that they discover. The right to inventory permits the search of all readily accessible portions of the vehicle, such as an unlocked glove compartment. It may also be permissible to search otherwise inaccessible portions of the vehicle, such as a locked glove compartment or trunk, if it can be done without force, such as by using the owner's key. Under the Fourth Amendment, closed containers found within a vehicle during an inventory search may be opened if police department policy authorizes the opening of containers. The applicable criteria are those of the agency actually doing the inventory search. Needless to say, there's probably not a law enforcement agency in North America that doesn't have such a policy authorizing its' agents to open sealed containers during an "inventory search" of a vehicle. Nevertheless, Article 1, Section 9, of the Texas Constitution provides greater protection than the Fourth Amendment of the United States Constitution in the context of inventory searches. The Court of Criminal Appeals has held that the interest in the protection of the suspect's property, as well as the protection of the police from claims of theft, can be satisfied by recording the existence of and describing or photographing the closed container. This does not mean that officers may never search a closed or locked container if some other exception, such as exigent circumstances, applies; only that officers may not rely on the inventory exception to conduct such a warrantless search. Thus, the opening of a closed container is not reasonable under Article I, Section Nine, of the Texas Constitution simply because an officer followed established departmental policy in opening the container. However, because the opinion of the Court of Criminal Appeals stating that police officers may not open closed containers under an inventory search theory was only a plurality opinion, some Courts of Appeals have concluded that this decision is not binding precedent and that the Texas Constitution should be interpreted consistent with the Fourth Amendment, or, at least with the federal courts' "interpretation" of the Fourth Amendment. A true inventory search is one conducted by an officer or his or her agent, using a standard inventory form prepared pursuant to standard procedures. An inventory is lawfully done when it is conducted in accordance with standard police procedure. The burden is on the state to show compliance with standard procedure. But, a Houston Court of Appeal in Dansby v. State, (659 S.W.2d 78, 80 (Tex. App.--Houston [l4th Dist.] 1983, no pet.)) held that a violation of departmental regulation during an inventory "search" was an "administrative matter" that does not invalidate the law enforcement agency's search. The state also has the initial burden of asserting the inventory exception to the warrant requirement; the appellate court will not apply it automatically if it was not raised in the trial court. Theoretically, the failure to provide evidence that an inventory was conducted pursuant to standard procedure invalidates it, whether or not the authority to inventory actually existed. However, if the authority to inventory exists, and standard procedure is followed, the search is not thrown out because the officer also may have had an underlying belief that contraband or other evidence would be found. Similarly, there is no requirement that the search be conducted in a specific place, or follow a specific procedure, as long as it conforms to the standard practice. Thus, an inventory may be permitted when conducted on the street at the time of the person's arrest, and a written inventory is not a necessity.

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