No. 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
LOUGHRY, J., dissenting:



              I dissent from the majority’s overly simplistic and erroneous conclusion that

the petitioner’s conviction should be reversed pursuant to Arizona v. Gant, 556 U.S. 332

(2009). In its haste to invalidate the officer’s search of the vehicle, the majority failed to

thoroughly consider whether the evidence at issue would have been inevitably discovered

during a lawful inventory search following the petitioner’s arrest. In that regard, it is well-

established that “the inventory search constitutes a well-defined exception to the warrant

requirement.” Illinois v. Lafayette, 462 U.S. 640, 643 (1983). Furthermore, the United

States Supreme Court has long held that “when, as here, the evidence in question would

inevitably have been discovered without reference to the police error or misconduct, there

is no nexus sufficient to provide a taint and the evidence is admissible.” Nix v. Williams, 467

U.S. 431, 448 (1984). In this case, the majority has failed to undertake any analysis of the

law concerning inventory searches. As such, its legally incomplete and unsound conclusion

that the evidence should have been suppressed is simply wrong.



              Although Gant may preclude a finding that the evidence was obtained through

a reasonable search incident to a lawful arrest, even a first-year law student knows that the


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legal analysis does not end there. The majority acknowledged in its new syllabus point that

the evidence may be admissible if another exception to the warrant requirement applies; yet,

it summarily concluded that the trial court erred by refusing to suppress the evidence

pursuant to Gant. Blithely dismissing the State’s contention that the evidence would have

been recovered pursuant to a valid inventory search, the majority misapplied this Court’s

decision in State v. Goff, 166 W.Va. 47, 272 S.E.2d 457 (1980).



              The majority’s entire discussion of Goff and the law related to inventory

searches is relegated to a footnote at the end of the opinion. In that skeletal footnote, the

majority concludes that an inventory search was not justified by simply citing syllabus point

two of Goff which states: “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.” 166 W.Va. at 47, 272 S.E.2d at 459. In doing

so, the majority completely overlooked the legal analysis underlying that holding. In Goff,

this Court recognized that the rationale for an inventory search is three-fold: “(1) the

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

the police against claims or disputes over lost or stolen property; and (3) the protection of the

police from potential danger.” 166 W.Va. at 49, 272 S.E.2d at 459 (citing South Dakota v.

Opperman, 428 U.S. at 364, 369 (1976)). In the case at bar, the majority noted that Officer

Adams testified “that [the petitioner] repeatedly glanced inside his vehicle and at the


                                               2

vehicle’s center console.” Critically, the majority ignored the fact that such behavior would

obviously lead a reasonable police officer to conclude that the petitioner was concerned about

some item of personal property located in the center console. Given the fact that the vehicle

was being taken into police custody because there was no one else to remove it from the

scene, and given the arresting officer’s awareness of the petitioner’s apparent concern over

the contents of the center console, any reasonable person would conclude that an inventory

search was appropriate.



              It is also important to note that at the time Goff was decided in 1980, it was

recognized that there was a “divergence of opinion” as to when an inventory search could

be initiated. 166 W.Va. at 52, 272 S.E.2d at 461. A significant number of courts have since

firmly adopted the view that when the police have the authority to impound a vehicle, they

have a concomitant right to examine and inventory the vehicle’s contents without a warrant.

See United States v. Jackson, 682 F.3d 448, 455 (6th Cir. 2012) (“It is settled law that the

police may conduct an inventory search of an automobile that is being impounded without

running afoul of the Fourth Amendment.”); United States v. Clinton, 591 F.3d 968, 972 (7th

Cir. 2010) (“Police who lawfully impound a vehicle may take an inventory search of its

contents, because they are responsible for those contents while the car and its contents are

in their custody.”); United States v. Kimhong Thi Le, 474 F.3d 511, 515 (8th Cir. 2007)

(“Law enforcement may search a lawfully impounded vehicle to inventory its contents


                                              3

without obtaining a warrant.”); United States v. Kinzalow, 236 Fed. Appx. 414, 420 (10th Cir.

2007) (“When a vehicle is legally impounded, police may, following standardized procedures

and in the absence of bad faith, perform an inventory search of the contents of the vehicle.”);

United States v. Morris, 179 Fed. Appx. 825, 827 (3rd Cir. 2006) (“An inventory search

conducted by the police before the vehicle is towed is lawful if the police have grounds for

impounding or otherwise taking custody of the vehicle, and the search is conducted pursuant

to standard police procedures aimed at protecting the owner’s property and protecting the

police from the owner’s later accusations of theft, loss or damage.”); United States v. Pappas,

452 F.3d 767, 771 (8th Cir. 2006) (“An inventory search by police prior to the impoundment

of a vehicle is generally a constitutionally reasonable search.”); United States v. Kennedy,

427 F.3d 1136, 1143 (8th Cir. 2005) (“Police may conduct a warrantless search of a lawfully-

impounded vehicle even in the absence of probable cause.”); United States v. Stanley, 4 Fed.

Appx. 148, 150 (4th Cir. 2001) (“An inventory search, even if not thorough and complete,

satisfies the Fourth Amendment if administered in good faith.”); West v. Duncan, 179

F.Supp.2d 794, 803 (N.D. Ohio 2001) (“[P]olice may search a vehicle properly impounded

or towed in order to establish the contents of the car.”); United States v. Logan, 744 F.Supp

735, 746 (N.D. Miss. 1990) (“Reasonable inventory procedures administered in good faith

do not violate the fourth amendment.”).




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              Furthermore, many other courts have found evidence to be admissible pursuant

to the inevitable discovery doctrine based on inventory search procedures. “In such cases,

the court typically concludes that even if the invalid search had not been conducted, the

evidence would nonetheless have been discovered in the course of a valid inventory search

conducted pursuant to standardized, established procedures.” United States v. Mendez, 315

F.3d 132, 138 (2nd Cir. 2002). For example, in Mendez, the defendant was convicted of

“possession of a firearm as a previously convicted felon in violation of 18 U.S.C. §§

922(g)(1) and 924(a)(2).” 315 F.3d at 133. The defendant appealed his conviction, arguing

that the trial court erred in failing to suppress the gun because the police lacked probable

cause to search the glove compartment of his automobile where the evidence was located.

315 F.3d at 133. He further asserted that the evidence was not admissible under the “search­

incident-to arrest exception” to the exclusionary rule. Id. While the appellate court found

that the evidence had been unlawfully obtained, it nonetheless affirmed the defendant’s

conviction because “the evidence would have inevitably been discovered in a valid inventory

search.” 315 F.3d at 139. The court explained that “[h]ad the two officers not found the

evidence during the earlier searches, they would inevitably have found it in the course of a

valid inventory search, which [Officer] Foster would subsequently have made. Thus, the

evidence was properly admitted under the inevitable discovery exception to the exclusionary

rule.” Id.




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              In United States v. Cartwright, 630 F.3d 610 (7th Cir. 2010), which is more

factually similar to the case at bar, the defendant was stopped for failure to have an

illuminated rear license plate. Id. at 612. Upon being pulled over, the defendant was placed

under arrest because he refused to identify himself or produce a driver’s license. Id. The

officer then searched the car incident to the arrest and discovered a weapon that the

defendant later moved to have excluded from evidence pursuant to Gant. Id. Upon review

of all relevant law, including Gant, the Seventh Circuit found that, in light of the defendant’s

arrest, the vehicle required impoundment1 and, therefore, was subject to an inventory search

that would have inevitably led to the discovery of the weapon. Id. at 614. The court rejected

the argument that the officer’s failure to properly prepare an inventory of the vehicle nullified

the search explaining that “minor deviations from department policy do not render an

inventory search unreasonable.” Id. at 616.



              Several other courts have also concluded that Gant does not undermine the

inventory search exception or the inevitable discovery doctrine. See United States v. Bogle,

522 Fed. App’x 15, 20-21 (2nd Cir. 2013) (“Although we are skeptical that the subsequent

search of Bogle’s Jaguar at the scene of the arrest can also be justified as a search incident

to arrest [pursuant to Gant], we need not reach the issue here. The officers properly



       1
        The owner of the automobile was a passenger, but she was unlicensed and, therefore,
unable to move the car.

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impounded Bogle’s car then performed a routine inventory search, during which the round

recovered from the floor of the passenger seat during the challenged search would inevitably

have been discovered.” (citations omitted)); United States v. Hairston, 409 Fed. App’x 668,

670 (4th Cir. 2011) (“We need not reach the Gant issue as the evidence obtained from the

vehicle search is admissible under the inevitable discovery doctrine. . . . In this case, if the

officer had not conducted a search incident to arrest, an inventory search of the car would

have been conducted, wherein the evidence in question would have been discovered.”);

United States v. Contreras, 348 Fed. App’x 263, 264-65 (9th Cir. 2009) (“We hold that the

search of Contreras’ car violated the Fourth Amendment because Contreras was not within

reaching distance of the passenger compartment at the time of the search and it was not

reasonable for police to believe that the car contained evidence of Contreras’ offense . . .

. Nonetheless, we affirm the ruling below because the district court did not clearly err in

finding that police inevitably would have discovered the contraband at issue.”); United

States v. Garreau, 735 F. Supp. 2d 1155, 1166 (D.S.D. 2010), aff'd, 658 F.3d 854 (8th Cir.

2011) (“[A]lthough the handgun was found during a search incident to arrest contrary to

Gant, the handgun would have been inevitably discovered as part of an inventory search

following the arrest of Garreau for driving with a suspended license and on the outstanding

warrant. . . . Due to his arrest and inability to identify anyone who could pick up the vehicle

from the site of the arrest, Garreau’s vehicle would have been inevitably impounded, thereby

mandating an inventory of the vehicle’s contents.”); United States v. Morillo, 2009 WL


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3254431 at *8 (E.D.N.Y. Oct. 9, 2009) (“[T]he gun is also admissible because the arresting

officers would have inevitably found it during a later inventory search of Morillo’s backpack

at the stationhouse. . . . [T]he [inevitable discovery and inventory search] doctrines may be

combined to admit evidence under a theory of inevitable discovery in an inventory search.”).



              In syllabus point four of State v. Flippo, 212 W.Va. 560, 575 S.E.2d 170

(2002), this Court held:

                      To prevail under the inevitable discovery exception to the
              exclusionary rule, Article III, Section 6 of the West Virginia
              Constitution requires the State to prove by a preponderance of
              the evidence: (1) that there was a reasonable probability that the
              evidence would have been discovered by lawful means in the
              absence of police misconduct; (2) that the leads making the
              discovery inevitable were possessed by the police at the time of
              the misconduct; and (3) that the police were actively pursuing a
              lawful alternative line of investigation to seize the evidence
              prior to the time of the misconduct.

Applying these requirements to the facts of this case, it is clear that law enforcement would

have inevitably discovered the drugs in the center console of the vehicle. Prior to the time

Officer Adams opened the center console, he already possessed the evidence that led to the

petitioner’s arrest and conviction for fleeing in a vehicle. In that regard, Officer Adams had

signaled his lights and sirens for the petitioner to stop but instead the petitioner initiated a

high-speed chase through traffic and residential neighborhoods. The petitioner’s arrest for

fleeing alone required the impoundment of his vehicle and an inventory search because no



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person was available to remove the vehicle.2 Given these facts, there was more than a

“reasonable probability” that the drugs in the center console would have been discovered in

a lawful inventory search resulting from evidence possessed by Officer Adams at the time

he opened the center console. Moreover, the drugs would have been discovered in a “lawful

alternative line of investigation” as an inventory of the vehicle would have, and did, follow

the petitioner’s arrest for fleeing in a vehicle. As Officer Adams testified,

              We did an inventory check of the car. We actually do
              inventories on cars that we tow for the fact that we like to know
              what’s in them so someone can’t say that something turned up
              missing after the fact, or that the towing company stole
              something out of their vehicle at that time.



              In light of the foregoing, I would have affirmed the petitioner’s convictions

based on the fact that the drug evidence would have been inevitably discovered during a valid

inventory search of the vehicle. Had the majority actually undertaken any legal analysis of

this Court’s prior holding in Goff, it surely would have concluded that an inventory search

was appropriate. In fact, it is hard to imagine any reasonable jurist concluding otherwise

given the petitioner’s constant obsession with the vehicle’s center console.




       2
       The petitioner indicated that the vehicle belonged to the his girlfriend who lived in
Beckley, West Virginia.

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              Notwithstanding the fact that this evidence should have been admissible under

Goff and Flippo as it would have been obtained pursuant to a subsequent valid inventory

search, this Court should have taken the opportunity to revisit Goff’s more restrictive holding

regarding the propriety of inventory searches. The majority missed the perfect opportunity

to bring West Virginia’s criminal jurisprudence in line with the rest of the country. The view

now taken by a majority of courts, as discussed herein, represents a more reasoned approach

to inventory searches in the context of law enforcement as it exists today. Instead, the

majority has merely relied upon Gant without any consideration of the likelihood that the

evidence in question would have been discovered as part of a valid inventory search. Such

an approach represents the worst kind of result-oriented jurisprudence. In effect, the majority

was looking for a way to reverse the petitioner’s drug convictions and refused to even

consider the substantial authority which establishes that the search was constitutionally valid.

                                                           Accordingly, I respectfully dissent.




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