By David Daggett

As was briefly touched on in last month’s blog, one of the “exceptions” to the warrant requirement under the Fourth Amendment is the inventory search, or, as it is sometimes referred, “inventory search?”  The Maryland Court of Special Appeals just released a new opinion written by Judge Moylan on September 28, 2017 addressing the issue of inventory searches and I thought it worth reviewing.

The case was State of Maryland v. Daniel Paynter, No. 257, September Term, 2017. As with all opinions written by Judge Moylan, it is filled with humor, flowery language, a historical perspective and good common sense. It also tells you just about all you need to know to properly conduct an inventory search or when arguing a motion to suppress evidence found during such a search.

***Be advised that inventory searches should not be used in lieu of search warrants.***

The Facts

Daniel Paynter was pulled over on December 13, 2016 in Prince George’s County by Laurel Police Officer Donald Rohsner for speeding. His 2014 Chevy Impala was clocked by radar doing 50 MPH in a 30 MPH zone. Mr. Paynter was the driver and sole occupant. Upon conducting the stop, it was determined that Paynter’s license was suspended. (Uh Oh! I can picture Mr. Paynter now, yelling, “Justice Reinvestment! Justice Reinvestment!”) It turns out that the tags on the vehicle were suspended through the MVA and there was a “pick-up order” placed on them. In addition, Dispatch warned the officer that Paynter was possibly armed. Based upon that, Officer Nicholas Cahill responded as back-up. Other than the suspended license and tags, Paynter was suspected of no other crimes.

Both officers testified at a subsequent suppression hearing that when they come across a “pick-up order” they are required to remove the tags from the vehicle and return them to the MVA. As the vehicle could not be driven without tags – not to mention that Paynter was the sole occupant and held a suspended driver’s license – the vehicle was impounded and towed back to the Laurel station. The vehicle was then searched pursuant to Laurel PD’s inventory search policy.

The officers testified that when conducting an inventory search, they routinely search the glove compartment, center console area and trunk, as that is where valuables are most likely to be found. They generally look for and document items of value, such as cell phones, debit cards, money, jewelry, clothing and tools. On the inventory form, it was noted that there was a blue iPhone in the center console and seven (seven!) Mac computers in the trunk of the car. The search also uncovered 51 grams of marijuana, which became the subject of the suppression hearing.  Mr. Paynter did not testify at the hearing and the defense did not ask a single question on cross-examination of the officers.

The appellee’s argument before the suppression judge centered on his belief that the search was fatally flawed in that the inventory sheet failed to list everything that was found in the vehicle. For example, the body camera footage showed that, in addition to the items previously mentioned, the vehicle also contained three pairs of tennis shoes, a spare tire, a jack, jumper cables, two turtle doves and a partridge in a pear tree. Those items were not listed on the inventory sheet, though one of the turtle doves may have been. The suppression hearing judge granted the motion to suppress. The State then noted its appeal.

Inventory Searches and the Law 

The United States’ Supreme Court case of South Dakota v. Opperman, 428 U.S. 364 (1976) is the leading case on inventory searches. In Opperman, the defendant’s vehicle was towed to an impound lot as it had been illegally parked for a number of hours in a restricted zone. The officer unlocked the car and, using a standard inventory form pursuant to standard police procedures, inventoried the contents of the vehicle, including the unlocked glove compartment, where they discovered marijuana. Arguing that there was a Fourth Amendment violation, the case ultimately found its way to the U.S. Supreme Court.

The SCOTUS’ equated inventory searches to be more in line with the “caretaking procedure” and less so an “investigative” tool. The Court determined

When vehicles are impounded, local police departments generally follow a routine practice of securing and inventorying the automobile’s contents. These procedures developed in response to three distinct needs: the protection of the owner’s property while it remains in police custody…; the protection of the police against claims or disputes over lost or stolen property…; and the protection of the police from potential danger…The practice has been viewed as essential to respond to incidents of theft or vandalism. 428 U.S. at 369-370

Two Basic Requirements

South Dakota v. Opperman laid out the two basic requirements for a valid inventory search: 1.) The police must be lawfully entitled to impound or otherwise exert custody over the vehicle; and 2.) the inventorying must be conducted pursuant to “standard police procedure.”

In a number of cases following Opperman (among them Illinois v. Lafayette, 462 U.S. 640 (1983) and Colorado v. Bertine, 479 U.S. 367 (1987)), it has been argued that the police should use the least intrusive manner in dealing with the property in question and that the owner/operator should be given the opportunity to make other arrangements for the safekeeping of the property in question.

The Supreme Court addressed that issue in Bertine and held that “nothing in Opperman or Lafayette prohibits the exercise of police discretion so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity.” 479 U.S. at 375

How specific must the guidelines be?

In Florida v. Wells, 495 U.S. 1 (1990), the Florida Highway Patrol, pursuant to a DUI arrest, conducted an inventory search and forced open a locked suitcase in the trunk of the suspect’s car. In the suitcase was a garbage bag containing a large amount of marijuana. The department’s inventory policy was silent on the issue of opening closed containers. The Supreme Court determined that, in the absence of any policy with respect to closed containers, the search of the suitcase was not sufficiently regulated to satisfy the Fourth Amendment. While the policy need not explicitly state that all closed containers shall or shall not be opened, some guidelines must exist to limit police partiality.

The Court did opine that a police officer “must be allowed sufficient latitude to determine whether a particular container should or should not be opened in light of the nature of the search and characteristics of the container itself…The allowance of the exercise of judgment based on concerns related to the purposes of an inventory search does not violate the Fourth Amendment.”  495 U.S. at 4

Inventory Searches and Maryland Law

In Paynter, Judge Moylan cited several Maryland appellate cases recognizing the original Opperman decision and the validity of inventory searches in general, including Duncan and Smith v. State, 34 Md. App. 267 (1976), Briscoe v. State, 422 Md. 384 (2011), Sellman v. State, 152 Md. App. 1 (2003),  and Thompson v. State, 192 Md. App. 653 (2010). While those cases did not necessarily go in the State’s favor, they nonetheless upheld the constitutionality of lawful inventory searches, that is, that they may only be conducted only on vehicles lawfully in police custody and in compliance with written departmental policies or “standardized criteria or established routine.”  Briscoe at 397.

Police and Prosecutors: The Suppression Hearing and the Evidence

When conducting a suppression hearing involving evidence discovered during an inventory search, the State must always be sure to address the following:

  1. Was the vehicle lawfully under police control? Did the police have the right to take possession of the vehicle;
  2. Does the police department conducting the search have a standard written policy addressing inventory searches;
  3. Has affirmative evidence of such a policy been entered into evidence;
  4. Has affirmative evidence of the inventory list been entered into evidence?

The Sellman opinion, Id, stressed the necessity of not only having the officer testify to the existence of such a policy, but that affirmative evidence of such a policy be presented to the suppression hearing judge.  Have a hard copy of the policy and the inventory sheet; mark them as evidence; and move to admit them. The lack thereof was the downfall of the State’s case in Sellman, even though the prosecutor made reference to the police department policy in his argument, the officer testified to its existence, and that the trial judge may even have been aware of the existence of such a policy.

As Briscoe made clear, in the absence of any evidence that such a policy exists, it is impossible to distinguish a valid inventory search from a general investigatory search.

Outcome of Paynter

The Court of Special Appeals in Paynter reiterated the two requirements for a valid inventory search: that the vehicle to be inventoried must be in the lawful custody of the police; and that the search must be carried out pursuant to a standardized police policy.

The Court determined that, as the tags were lawfully removed, the vehicle could not have been legally driven – let alone by Mr. Paynter, whose license was suspended. The vehicle was found to be properly impounded, thus satisfying the first requirement.

Regarding the second requirement, the Court also held that the Laurel Police Department had a seven page General Order dealing with “Motor Vehicle Impounding” and it provided, amongst other things, that “

[T]he contents of all impounded vehicles shall be inventoried and listed on a Motor Vehicle Tow Report.”

Finally, Judge Moylan addressed the question of whether the failure to list everything found during the search invalidated the search and subsequent inventory list.

As previously noted, the actual list compiled by the Laurel officers only included items of value, such as the iPhone in the center console and the seven Mac computers from the trunk, even though body camera footage revealed the additional items, including the three pair of tennis shoes.

The hearing judge suppressed the evidence based upon this particular argument and ruled that, “What the police conducted is not an inventory, because an inventory lists everything.” Judge Moylan noted that “none of the Supreme Court decisions or the major Maryland opinions on the subject…has remotely alluded to any such invalidating principle, and we are not, as a matter of first impression, about to claim such a proposition here.” @ p. 25

The CoSA noted that the searching and the listing are two separate acts and the search and discovery of any particular item is concluded when the making of the list commences. By way of example, the Court explained that if contraband were discovered during the inventory search, then the plain view doctrine would kick in immediately and the later event (the making of the list) would not retroactively date back and make invalid the prior valid intrusion (the search). The discovery of the contraband should not be suppressed should something innocuous not be listed. I can picture the following dialogue taking place between judge and defense counsel: “So, you’re saying the two pounds of heroin shouldn’t come in because the officer didn’t include on the list the discovery of a half empty bag of Doritos? I don’t think so.”

The Court cited United States v. Lopez, 547 F.3d 364 (2nd Cir. 2008), which determined that the concept of an inventory search does not demand the separate itemization of every single object and that those of lesser value can be included under a general catch-all category of “personal belongings.”

A conventional family automobile is likely to contain a bunch of road maps, pens and a notepad, a bottle opener, packs of chewing gum or candy, clip-on sunshades, a pack of tissues, a vanilla-scented deodorizer, DVDs and children’s games, a baby bottle and a soiled baby blanket, an old sock, a sweater, windshield cleaning fluid, jumper cables, a tow rope, a tire iron and jack, a first   aid kit, and emergency flares, not to mention empty candy wrappers and wads of chewed gum. That an officer might use a catch-all to cover objects of little or no value in no way casts doubt on the officer’s claim that the purpose of the search was to make an inventory. It would serve no useful purpose to require separate itemization of each object found, regardless of its value, as a precondition to accepting a search as an inventory search. Such an obligation would furthermore interfere severely with the enforcement of the criminal laws by requiring irrational, unjustified suppression of evidence of crime where officers, conducting a bona fide search of an impounded vehicle, found evidence of serious crime but, in making their inventory, failed to distinguish between the maps of Connecticut and New York, or failed to list separately the soiled baby blanket or a pack of gum. Imposing a requirement to identify each item separately, regardless of lack of value, would furthermore add considerable administrative burden without in any way advancing the purposes of the Fourth Amendment to protect the public from “unreasonable searches and seizures.” U.S. Const. amend. IV.   Lopez @ 371

Ulterior Motives? 

As previously noted, the Supreme Court held in Colorado v. Bertine, 479 U.S. 367 (1987) that “nothing in Opperman or Lafayette prohibits the exercise of police discretion so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity.” 479 U.S. at 375

That begs the question of whether a third requirement might exist in order to validate an inventory search. That is, should the normal/usual inventory practices of the particular officer conducting the search be taken into account? In other words, even though a written policy may exist, if a particular officer rarely, if ever, conducts an inventory search, yet does so in a particular case, should that be something the courts should examine in determining whether this particular search was conducted on the basis of something other than suspicion of criminal behavior?

United States v. Lopez, supra also addressed the question of whether an otherwise valid inventory search is contaminated when the police possess some expectation of finding evidence of criminal behavior. Lopez argued that in his case the procedures were not administered in good faith because the officers were motivated by the expectation of finding criminal evidence in his car.

The Lopez Court stated that while the Fourth Amendment does not permit police officers to disguise warrantless, investigative searches as inventory searches, it also has not required an absence of expectation of finding criminal evidence as a prerequisite to a lawful inventory search:

When officers, following standardized inventory procedures, seize, impound, and search a car in circumstances that suggest a probability of discovering criminal evidence, the officers will inevitably be motivated in part by criminal investigative objectives. Such motivation, however, cannot reasonably disqualify an inventory search that is performed under standardized procedures for legitimate custodial purposes. See Opperman, 428 U.S. at 369; see also Bertine, 479 U.S. at 372. Under the Supreme Court’s precedents, if a search of an impounded car for inventory purposes is conducted under standardized procedures, that search falls under the inventory exception to the warrant requirement of the Fourth Amendment, notwithstanding a police expectation that the search will reveal criminal evidence. If good faith is a prerequisite of an inventory search, the expectation and motivation to find criminal evidence do not constitute bad faith.

In the present case, while the officers may well have had an investigative motivation to search Lopez’s car, the circumstances called for the impoundment of his car, as Lopez was arrested for driving it while intoxicated, and the impoundment required  conducting an inventory search. We find no reason to doubt that the Supreme Court’s standards for the conduct of a warrantless inventory search were fully satisfied.

A similar argument was addressed by a Massachusetts appellate court in the case of Commonwealth v. Baptiste, 65 Mass. App. Ct. 511 (2006) in which it held that “the fact that a searching officer may have harbored a suspicion that evidence of criminal activity might be uncovered as a result of the search should not vitiate his obligation to conduct the inventory.”

In the present case, Judge Moylan did caution that:

The two inducements for a search may live comfortably side by side. They are not antagonistic, and the additional presence of an investigative purpose will not erase the establishment of a solid inventory search justification. The undergirding truth is that the contemporaneous possession of two desiderata does not mean that one of them is a subterfuge. That, of course, would be the only reason for invalidating an otherwise valid inventory search. Such a reason does not exist in the present case. Once again, moreover, the appellee cites neither caselaw nor academic authority in support of his inherent cynicism.“ @ p. 34

Probable Cause to Arrest vs. Proper Seizure of the Vehicle

Thompson v. State, 192 Md. App. 653 (2010) is a great example (though maybe not great for Mr. Thompson) of a person who, if not for bad luck, would have no luck at all.

Jeffrey Thompson was in his Lexus, cruising the streets of Baltimore County at three o’clock in the morning, grooving to the sounds of smooth jazz while in search of an all-night Taco Bell. Apparently, Thompson had not listened to his mother when she told him that nothing good ever happens between 2:00 a.m. and 5:00 a.m. One of Baltimore County’s finest was aware of the old adage and thus, suspicions on full alert, decided to run the tags on the Lexus. Upon being advised that there was no valid registration on the vehicle, the officer initiated a stop. Thompson was unable to produce a driver’s license and attempted to produce insurance documents, which, unfortunately for Thompson, referred to not one, not two, but three different VINs. At that point the officer suspected some sort of fraud and placed Thompson under arrest for “failure to provide sufficient identification.” He then called a towing company to impound the vehicle. During the routine inventory search that followed the officer recovered a nine millimeter pistol in the trunk, along with some oxycodone and hydrocodone.

The Defendant contended that he was illegally arrested without probable cause for a nonexistent crime. The Circuit Court denied his motion to suppress and the CoSA concurred with the State that the recovery of the handgun occurred during a lawful inventory search and that it was reasonable for the police to seize the vehicle the defendant was driving based on the lack of proper registration; the conflicting vehicle identification numbers provided; the defendant’s failure to provide license information on demand; and the fact that the defendant’s passenger was no longer on the scene and therefore unavailable to drive the vehicle.

Relying on the Doctrine of Inevitable Discovery, the Court determined that regardless of whether or not Thompson was lawfully arrested, the handgun would have inevitably been discovered by a later inventory search conducted pursuant to standardized police procedures. Thompson also contended that the case should be remanded under Arizona v. Gant, based upon an unlawful search. The appellate court didn’t address the Gant argument, concluding that the seizure of the handgun in the trunk of the vehicle the defendant was driving was lawful because it was discovered during a valid inventory search, thus making analysis under Gant unnecessary


There are a number of instructive morsels to be gleaned from State v. Paynter. Among them:

  1. The vehicle to be searched must be lawfully in police custody;
  2. There must be a written inventory policy in place by the department conducting the search;
  3. As long as the policy so indicates, the officer need not list every single item recovered in the vehicle, but should try and list those deemed “of value”;
  4. While the searching officer may have harbored a suspicion that evidence of criminal activity might be uncovered as a result of the search, that alone should not negate his obligation to conduct the inventory search”;
  5. Inventory searches serve a legitimate police function and law enforcement should consider executing inventory searches more regularly. It might be a good idea to consider having off-road or light-duty employees conduct the procedures, thus avoiding possible conflicts presented in #4;
  6. In light of the holding in State v. Paynter, this would seem to be a good time for departments to update their inventory search policies;
  7. When conducting a suppression hearing related to an inventory search, prosecutors must admit the policy and inventory list into evidence;
  8. Police should NEVER use the inventory search as a means of getting around the warrant requirement! The best way to invalidate future inventory searches is to use them to skirt the warrant process.