14-0174 — State v. Noel                                               FILED
                                                                  November 6, 2015
                                                                     released at 3:00 p.m.
                                                                     RORY L. PERRY II, CLERK
                                                                   SUPREME COURT OF APPEALS
                                                                       OF WEST VIRGINIA

Benjamin, Justice, concurring:

                I concur with the majority opinion.    I write separately to address any

contention that the illegal narcotics sought to be suppressed would have inevitably been

discovered during the police’s inventory search of the subject vehicle even had Officer

Adams scrupulously complied with Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173

L. Ed. 2d 485 (2009), by not conducting a search of the passenger compartment incident

to Mr. Noel’s arrest. The majority opinion properly concludes that the State failed to

carry its burden to prove that the police conducted a valid inventory search of the vehicle

that would have excused them from first obtaining a warrant. In so doing, the majority

dispels any notion that inventory searches should routinely afford a governmental agency

a license to nullify the protections against unreasonable searches and seizures provided

by the Fourth Amendment and by Section 6 of Article III of the West Virginia

Constitution.    In other words, an inventory search may not be used simply as a

mechanism of convenience by the State to avoid the warrant requirement of our federal

and state constitutions.



                The seminal case by this Court addressing the issue of an inventory search

of an automobile is State v. Goff, 166 W. Va. 47, 272 S.E.2d 457 (1980). In Goff, the

defendant was arrested for breaking and entering into a used car dealership after his

                                             1

accomplice was discovered on the accompanying lot driving one of the dealership’s

automobiles. The defendant himself was found seated in a pickup truck parked elsewhere

on the lot, and both men were transported to jail. Thereafter, the police conducted an

inventory search of the pickup, whereupon they discovered the title to the dealership’s

automobile in the truck’s glove compartment. The title was admitted into evidence at the

defendant’s trial. On appeal of his conviction, the defendant asserted, inter alia, that the

inventory search was illegal, requiring suppression of the title. The issue presented was

one of first impression for this Court. To resolve it, we looked to the decision of the

United States Supreme Court in South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct.

3092, 49 L. Ed. 2d 1000 (1976).



              In Goff, we noted at the outset the Opperman Court’s acknowledgment that,

under the proper circumstances, a warrantless inventory search of a vehicle could be

made. The decision in Opperman justified an inventory search on the grounds of (1)

protecting the owner’s property while it remains in police custody; (2) protecting the

police against claims of property being stolen; and (3) protecting the police from

potential danger. Opperman also made clear that an inventory search is not a license for

government officials to avoid the requirements of the Fourth Amendment respecting

lawful searches and seizures. Goff recited from Opperman the following limitations to

the inventory search:

              The inventory was conducted only after the car had been
              impounded for multiple parking violations. The owner,

                                             2
              having left his car illegally parked for an extended period, and
              thus subject to impoundment, was not present to make other
              arrangements for the safekeeping of his belongings. The
              inventory itself was prompted by the presence in plain view
              of a number of valuables inside the car. . . . [T]here is no
              suggestion whatever that this standard procedure, essentially
              like that followed throughout the country, was a pretext
              concealing an investigatory police motive.

Goff, 166 W. Va. at 55 n.3, 272 S.E.2d at 463 n.3 (quoting Opperman, 428 U.S. at

375-76, 96 S. Ct. at 3100, 49 L. Ed. 2d at 1009).



              As a result of the limitations imposed by Opperman, we adopted the

following guidelines for conducting an inventory search in West Virginia in syllabus

points 1 and 2 of Goff:

              1. The right to an inventory search begins at the point where
              the police have a lawful right to impound the vehicle.

              2. An inventory search is not proper when there is no
              showing that the police saw any items of personal property in
              the interior of the vehicle, which would warrant the initiation
              of an inventory search.

We applied these guidelines in Goff and concluded that the inventory search in that case

was unlawful:

              Even if we were to assume that there had been an actual
              lawful impoundment of the truck, the inventory search would
              not be proper in this case because there was no showing that
              the police saw any items of personal property in the interior
              of the vehicle, which would warrant the initiation of an
              inventory search.
                                             ***
              The basis for this rule is that unless some personal property is
              seen in plain view in the vehicle there is little, if any, basis for

                                               3
             an inventory search. The purpose for a routine police
             inventory search is to secure personal property from being
             stolen or lost while the car is in custody, but without any
             visible personal property there is a diminished likelihood that
             the car will be broken into. On the other hand, it must be
             remembered that once the vehicle has been impounded the
             police have the right to secure it by rolling up the windows
             and locking the doors. Any personal property seen in the
             course of this action can lead to a fuller inventory search.

Goff, 166 W. Va. at 51-53, 272 S.E.2d at 461-62.



             We relied on Goff to reverse a conviction in State v. Perry, 174 W. Va. 212,

324 S.E.2d 354 (1984). The defendant in Perry was arrested for driving without a

license, and his vehicle was impounded. During the subsequent inventory search, the

police found a bag of marijuana in the trunk of the vehicle. The State sought and

successfully obtained the vehicle’s forfeiture on the ground that it had been used to

facilitate a crime. On appeal, the defendant maintained, inter alia, that the inventory

search was unlawful because the police did not give him the option of having someone

retrieve the car, rather than impounding it. We concurred in the defendant’s position:

             Courts have held that a driver must be given a reasonable
             opportunity to make some alternative disposition of the
             vehicle before the police may impound it for the sole purpose
             of protecting it and its contents from theft or damage. . . . We
             agree with this principle, although as we have previously
             stated, the duty to consult with a driver concerning the
             disposition of his vehicle does not exist in every
             impoundment situation. . . . However, in the situation where
             the owner or possessor of a vehicle has been arrested in or
             near his car, ordinarily, he must be given a reasonable
             opportunity to make some alternative disposition of the


                                            4
              vehicle before the police may impound it for the sole purpose
              of protecting it and its contents from theft or damage.
                                            ***
              In this case, we find that the arresting officer did not have a
              ground for impoundment that would enable him to avoid
              giving the driver a reasonable opportunity to make an
              alternative disposition. The failure to permit such alternative
              disposition renders the impoundment and subsequent
              inventory search invalid.          We specifically base this
              requirement, as we did in Goff, on Section 6 of Article III of
              the West Virginia Constitution.

Perry, 174 W. Va. at 217-18, 324 S.E.2d at 359-60.



              To reiterate, our decision in Perry requires that the arrested driver

ordinarily be given a reasonable opportunity to arrange to have the vehicle removed by

means other than police impoundment. If the vehicle is nonetheless impounded, then

Goff authorizes an inventory search of a vehicle only when items of personal property are

in plain view within. Moreover, controlling precedent strongly suggests that inventory

searches so authorized be conducted pursuant to established procedures. In Colorado v.

Bertine, 479 U.S. 367, 107 S. Ct. 738, 93 L. Ed. 2d 739 (1987), the Supreme Court of the

United States concurred with Opperman’s assessment of the reasonableness of

warrantless inventory searches based on “caretaking procedures designed to secure and

protect vehicles and their contents within police custody.” Bertine, 479 U.S. at 372, 107

S. Ct. at 741, 93 L. Ed. 3d at 746.




                                            5

              Indeed, in Opperman, the Court discussed with approval its prior decision

in Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973), distilling

therefrom that protective inventory searches should be “carried out in accordance with

standard procedures in the local police department, a factor tending to ensure that the

intrusion would be limited in scope to the extent necessary to carry out the caretaking

function.” Opperman, 428 U.S. at 375, 96 S. Ct. at 3100, 49 L. Ed. 2d at 1008 (emphasis

in original). The requirement was met in Opperman by virtue of the searching officers

having followed “standard police procedures, prevailing throughout the country and

approved by the overwhelming majority of courts.” Opperman, 428 U.S. at 376, 96 S.

Ct. at 3100, 49 L. Ed. 2d at 1008.



              That vehicles are routinely impounded and searched, regardless of

circumstances, does not equate to the implementation and observance of routine,

standardized procedures in the conduct of such searches. We made that clear in State v.

York, 203 W. Va. 103, 506 S.E.2d 358 (1998), in which we reversed the circuit court’s

failure to suppress the evidence seized during an inventory search, where the chief of the

police department testified that “inventory searches were routinely conducted of

impounded vehicles” and that he would have conducted the particular search at issue

regardless of whether he had seen any personal property in plain view inside the subject

vehicle. See id., 203 W. Va. at 106, 109, 506 S.E.2d at 361, 364.




                                            6

              On a motion to suppress, “[w]hen the State seeks to introduce evidence that

was seized during a warrantless search, it bears the burden of showing the need for an

exemption from the warrant requirement and that its conduct fell within the bounds of the

exception.” State v. Lacy, 196 W. Va. 104, 111, 468 S.E.2d 719, 726 (1996). In the case

at bar, the State put forth no evidence that the police legitimately saw any item of value in

the vehicle driven by Mr. Noel, no evidence that he was asked whether he wanted to

make arrangements to have the vehicle removed, and no evidence that the impoundment

and inventory search were conducted pursuant to any standards or procedures adopted by

the Bluefield Police Department or the City of Bluefield.



              Indeed, the only authority I could find potentially governing the situation

was a City ordinance permitting the impoundment of vehicles that have been wrecked,

abandoned, illegally parked, or otherwise found to be in violation of legal requirements,

in which case the impounding officer “is authorized to do every act, including entry into

such vehicle, which may be reasonably necessary to effect such impounding.” Bluefield,

W. Va., Code of Ordinances § 40-13 (1974).              The ordinance does not address

impoundment of a vehicle associated with a moving traffic violation, and it provides no

standards or procedures to assist a police officer who might conduct an inventory search

pursuant to such an impoundment. Officer Adams’ testimony at the suppression hearing

that his department’s police officers, presumably as a matter of routine, simply “do




                                             7

inventories on cars that we tow” underscores the lack of standards or procedures

necessary for consideration of an exception to the warrant requirement herein.



              Any alternative disposition of this appeal is therefore controlled in

substantial part by our decision in York disapproving of routine inventory searches, and in

the remainder by our decisions in Goff and Perry requiring, respectively, that such

searches, when appropriate, be triggered by the need to secure observable personal

property and that arrested drivers be reasonably given an alternative to impoundment for

disposing of their vehicles. In the final measure, this court is obliged to respect and give

effect to the limitations on government actions contained within our federal and state

constitutions, and to ensure that inventory searches not simply be “a ruse for a general

rummaging in order to discover incriminating evidence.” Whren v. United States, 517

U.S. 806, 811, 116 S. Ct. 1769, 1773, 135 L. Ed. 2d 89 (1996).




                                             8

