               IN THE SUPREME COURT, STATE OF WYOMING

                                   2013 WY 103

                                                         APRIL TERM, A.D. 2013

                                                                  August 29, 2013

RALPH LAVERNE
HUNNICUTT-CARTER,

Appellant
(Defendant),
                                               S-12-0271
v.

THE STATE OF WYOMING,

Appellee
(Plaintiff).


                  Appeal from the District Court of Campbell County
                       The Honorable Dan R. Price II, Judge


Representing Appellant:
      Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel;
      David E. Westling, Senior Assistant Appellate Counsel; Wyoming Public
      Defender Program. Argument by Mr. Westling.

Representing Appellee:
      Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy
      Attorney General; Theodore R. Racines, Senior Assistant Attorney General; Prof.
      Darrell D. Jackson, Faculty Director; Emily N. Thomas, Student Director; and
      Courtney Gilbert, Student Intern, of the Prosecution Assistance Clinic. Argument
      by Ms. Gilbert.


Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
DAVIS, Justice.

[¶1] Appellant Ralph Laverne Hunnicutt-Carter entered a conditional plea to a charge
of felony possession of methamphetamine, thereby reserving the right to appeal the
district court’s denial of his motion to suppress the results of a vehicle inventory which
yielded the methamphetamine. Appellant contends that impoundment of the vehicle was
unnecessary under the circumstances, and that the search was conducted in bad faith. He
also claims that police officers should be required to inquire into less intrusive means of
safeguarding a vehicle before inventorying one in anticipation of impoundment.

[¶2] We hold that inventory of a vehicle’s contents pending impoundment is
constitutional when it is authorized by statute or when it is conducted pursuant to the
general policy of a law enforcement agency. In this case, a state trooper had both a
statutory basis to impound a vehicle whose driver had been arrested, and he was also
required to inventory the vehicle’s contents before impounding it by a general Wyoming
Highway Patrol policy. We also find that the district court’s ruling that the trooper acted
in good faith is supported by the record and is not therefore clearly erroneous.
Consequently, we affirm.

                                                 ISSUE

[¶3] Did the district court err in denying Appellant’s motion to suppress the results of
an inventory search preceding the planned impoundment of a vehicle but after its driver
had been arrested?

                                                 FACTS

[¶4] Shortly after midnight on April 5, 2012, Highway Patrol Trooper Scott Templeton
observed a Chevrolet Cavalier which appeared to be travelling above the posted speed
limit on Highway 51 outside of Gillette, Wyoming. He confirmed by radar that the car
was speeding at 74 miles per hour in a 55 mile per hour zone and made a traffic stop.
Hunnicutt-Carter was alone in the vehicle. He had no driver’s license or proof of
insurance, but provided his vehicle registration, and told the officer his name and date of
birth.

[¶5] Templeton left Hunnicut-Carter in his vehicle and contacted his dispatcher from
his patrol car. The dispatcher advised him that Hunnicutt-Carter had an outstanding
warrant from Campbell County.1 Templeton confirmed the validity of the warrant with


1
  The record of the hearing does not reflect the offense which led to issuance of the warrant. The
presentence investigation report in this case is unclear as to this issue as well, although it may have been
driving with a suspended license.


                                                     1
the dispatcher, arrested Hunnicutt-Carter, and placed him in the patrol car. According to
the police report, only eleven minutes transpired between the initial stop and the arrest.

[¶6] Trooper Templeton planned to impound the vehicle as required by Highway Patrol
policy, and pursuant to that policy he conducted what was intended t o b e a p r e-
impoundment inventory of the vehicle. He discovered a small plastic bag of a crystalline
substance he suspected to be methamphetamine in the driver’s console. He also found an
unlocked strongbox which contained five more baggies of suspected methamphetamine, a
syringe, a glass pipe, a digital scale, several cotton swabs, and a spoon in the front
passenger seat area. A field test indicated that the baggies in fact contained crystal
methamphetamine. This was later confirmed by laboratory testing.

[¶7] Hunnicutt-Carter’s father arrived to take possession of the vehicle shortly after
Trooper Templeton completed the inventory which revealed the drugs and paraphernalia,
but before a tow truck arrived to take the vehicle to an impoundment yard. Hunnicutt-
Carter had called his father to ask him to pick the vehicle up while Trooper Templeton
was in his patrol car checking for warrants. Trooper Templeton released the vehicle to
Appellant’s father, and he drove it away. Appellant was then charged with possession of
three or more grams of methamphetamine, a felony under Wyoming Statute § 35-7-
1031(c)(ii).

[¶8] Appellant pled not guilty and filed a motion to suppress the methamphetamine as
the product of an illegal search. He claimed that a warrantless vehicle search was
unreasonable under the circumstances, and that an inventory was unnecessary because his
father was available to take the vehicle.

[¶9] At the suppression hearing, the State called Trooper Templeton as its only witness.
He testified that the Wyoming Highway Patrol (WHP) has a policy requiring
impoundment of vehicles when no one is available to drive the vehicle after an arrest, and
that the policy also requires troopers to inventory the contents of vehicles to be
impounded before releasing them to a towing company or any other person or entity.

                    That policy provides that we will do an inventory of
             the vehicle, its contents, prep it for being towed.

                                        .   .    .

                    The procedure is to go completely through the vehicle
             either by audio or write it down what’s in the vehicle.

                                        .   .    .




                                             2
              [W]e go through there [the vehicle], we talk about anything of
              value, any loose items, things like that that are in the vehicle
              that could be taken from the vehicle.

Trooper Templeton stated that the purpose of an inventory is to “hold everyone
accountable when they take possession of the vehicle.”

[¶10] Trooper Templeton testified that no one was available to take the car until after the
inventory. He indicated that he did not know that Appellant’s father was on his way to
pick up the car when he performed the inventory. He testified that he was simply
complying with the WHP’s established policy for inventorying vehicles when he
discovered the methamphetamine and assorted paraphernalia.

[¶11] Cross-examination elicited that Trooper Templeton saw that Appellant was on his
phone while his license was being checked through dispatch, and that he heard the phone
ringing after the arrest. However, the trooper also testified that Hunnicutt-Carter did not
tell him that his father was coming to get the car. He indicated that the arrest was based
solely on the outstanding warrant, and that he did not arrest Appellant for speeding or
other traffic violations. He testified that he conducted a routine inventory, and that it was
not intended to discover evidence related to Appellant’s outstanding warrant.

[¶12] Defense counsel asked, “Now, don’t you have to impound the car before you have
the right to do an inventory search?” Trooper Templeton responded “No, sir.” He
clarified that once an arrest is made, the arrestee’s vehicle is technically in his possession
under the WHP inventory policy. At that point, he is required by the policy to conduct an
inventory before he can release the vehicle to anyone but the driver or a passenger.

[¶13] Trooper Templeton admitted that the vehicle was not stolen, abandoned, or a
hazard to other drivers. It was parked approximately six feet from the roadway, and it
could have been moved further from traffic. He believed that the car might have been
safe for the night, but reiterated that Highway Patrol policy does not permit troopers to
leave cars on the side of the road when an arrest is made. He also admitted that the car
was never impounded. The court questioned Trooper Templeton on the meaning of the
word “impound,” and he clarified, “We did not impound the car, take it, have a tow truck
come and take it and put it in our safe keep.”

[¶14] The district court held that Trooper Templeton conducted an inventory in good
faith pursuant to a valid inventory policy, and denied the motion to suppress. Hunnicutt-
Carter entered into a conditional plea agreement, pleading no contest to the felony
possession charge, but reserving his right to appeal the denial of his motion to suppress.
See W.R.Cr.P. 11(a)(2) (defendant may enter a conditional plea and appeal an adverse
pretrial determination subject to certain conditions). The district court accepted



                                               3
Appellant’s conditional plea and sentenced him to a term of three to five years of
incarceration. This appeal was timely perfected.

                                      DISCUSSION

[¶15] The Fourth Amendment to the United States Constitution and Article 1, Section 4
of the Wyoming Constitution prohibit unreasonable searches and seizures. U.S. Const.
amend. IV; Wyo. Const. art. 1 § 4; see, e.g., Sen v. State, 2013 WY 47, ¶ 26, 301 P.3d
106, 117 (Wyo. 2013); Owens v. State, 2012 WY 14, ¶ 10, 269 P.3d 1093, 1096 (Wyo.
2012); Hageman v. Goshen Cnty. Sch. Dist. No. 1, 2011 WY 91, ¶ 6, 256 P.3d 487, 492
(Wyo. 2011). Under either provision, “searches and seizures made without a warrant or
outside the judicial process are per se unreasonable unless they fall within one of the
recognized exceptions.” Tucker v. State, 2009 WY 107, ¶ 22, 214 P.3d 236, 243 (Wyo.
2009) (citing Callaway v. State, 954 P.2d 1365, 1369 (Wyo. 1998)); see also Illinois v.
McArthur, 531 U.S. 326, 330, 121 S. Ct. 946, 949, 148 L. Ed. 2d 838 (2001) (“When
faced with special law enforcement needs, diminished expectations of privacy, minimal
intrusions, or the like, the Court has found that certain general, or individual,
circumstances may render a warrantless search or seizure reasonable.”); Sen, ¶ 26, 301
P.3d at 117 (“Warrantless searches and seizures are presumptively unreasonable unless
they are justified by probable cause and an established exception to the warrant
requirement.”).

[¶16] Vehicle inventories are an exception to the general warrant requirement. Johnson
v. State, 2006 WY 79, ¶ 13, 137 P.3d 903, 906 (Wyo. 2006) (citing Roose v. State, 759
P.2d 478, 481 (Wyo. 1988)). The inventory exception allows police officers to inventory
the contents of a vehicle in the possession of law enforcement if the inventory “is
conducted pursuant to a standardized police procedure.” See Vargas-Rocha v. State, 891
P.2d 763, 767 (Wyo. 1995) (citing South Dakota v. Opperman, 428 U.S. 364, 376, 96 S.
Ct. 3092, 3100, 49 L. Ed. 2d 1000 (1976)).

[¶17] Probable cause is unnecessary to conduct an inventory, but the inventory cannot
be a bad faith pretext for general investigatory rummaging. Johnson, ¶ 13, 137 P.3d at
906 (citing Roose, 759 P.2d at 482); Williams v. State, 557 P.2d 135, 139 (Wyo. 1976);
see also Florida v. Wells, 495 U.S. 1, 4, 110 S. Ct. 1632, 1635, 109 L. Ed. 2d 1 (1990).
Inventorying a vehicle serves three purposes–it protects the vehicle itself from theft or
vandalism, it protects the police and the towing company from danger, and it protects the
police and towing company from claims or disputes over property claimed to have been
lost or stolen after law enforcement took control of the vehicle. Johnson, ¶ 14, 137 P.3d
at 906 (citing Opperman, 428 U.S. at 369, 96 S. Ct. at 3097).

[¶18] Appellant first contends that the inventory was conducted in bad faith because
impounding the vehicle was unnecessary under the circumstances. In support of this
argument, he suggests that police officers should be required to inquire into less intrusive


                                              4
means before inventorying a vehicle for impoundment. If Trooper Templeton had done
so in this case, he would presumably have learned that Appellant’s father was on his way
to pick up the vehicle. Appellant claims that an inquiry would have proven the inventory
unnecessary, which he claims would require exclusion of the evidence.

[¶19] In Opperman, the United States Supreme Court stated that automobiles must be in
“lawful police custody” before an inventory search takes place. 428 U.S. at 373, 96 S.
Ct. at 3099; see also Woodford v. State, 752 N.E.2d 1278, 1281 (Ind. 2001) (“In
determining the propriety of an inventory search, the threshold question is whether the
impoundment itself was proper.”). The district court found that the WHP had custody of
the vehicle after Appellant’s arrest, and that Trooper Templeton did not act in bad faith
because he inventoried the vehicle in anticipation of impounding it. The court also
observed that no one was available to take possession of the car after Appellant was
arrested, and that the inventory was complete by the time Appellant’s father arrived. The
court therefore concluded that the inventory was appropriate and done in good faith under
the circumstances.

[¶20] We review the district court’s factual findings on a motion to suppress for clear
error. We defer to those findings and view the evidence in the light most favorable to the
prevailing party because the district court is in the best position to weigh the evidence,
assess the credibility of witnesses, and make the necessary inferences, deductions, and
conclusions. However, “we review the ultimate determination regarding the
constitutionality of a particular search or seizure de novo.” Sen, ¶ 25, 301 P.3d at 117
(citing Owens, ¶ 8, 269 P.3d at 1095). See also Lovato v. State, 2010 WY 38, ¶ 11, 228
P.3d 55, 57–58 (Wyo. 2010) (quoting Yoeuth v. State, 2009 WY 61, ¶ 16, 206 P.3d 1278,
1282 (Wyo. 2009)); Meadows v. State, 2003 WY 37, ¶ 23, 65 P.3d 33, 40 (Wyo. 2003)
(quoting Gehnert v. State, 956 P.2d 359, 362 (Wyo. 1998)).

[¶21] The district court believed Trooper Templeton’s testimony that he did not know
that Appellant’s father was coming to retrieve his automobile, that a general policy
required that the vehicle be inventoried and then towed, and it therefore concluded that
the officer acted in good faith. There was nothing incredible about the testimony, and it
was certainly not erroneous for the district judge to believe it.

[¶22] Appellant contends, however, that this Court should adopt a rule which would
have required Trooper Templeton to inquire into less intrusive means of safeguarding a
vehicle, directing us to State v. Branstetter, 199 P.3d 1272 (Kan. App. 2009) in support
of this proposition:

             If the owner, operator, or person in charge of the vehicle is
             readily available to make a determination as to the disposition
             of the vehicle then he may do so. If the person responsible
             for the vehicle desires that the vehicle be left lawfully parked


                                             5
              upon the streets or that it be turned over to some other
              person’s custody, then, absent some other lawful reason for
              impounding the vehicle, his or her wishes must be followed.
              Only when a vehicle is found illegally parked and unattended,
              or where the person responsible for its possession is unable
              . . . or unwilling to instruct the arresting officers as to the
              vehicle’s disposition or some other legal reasonable justifying
              impoundment exists should the officers assume control over
              the vehicle.

Id. at 1276 (quoting State v. Fortune, 689 P.2d 1196, 1203 (Kan. 1984)) (emphasis
omitted). See also United States v. Abbott, 584 F. Supp. 442, 448 (W.D. Pa. 1984)
(“[S]ince an inventory search is to protect the owner’s property, the owner, whenever
available, should be given the opportunity to determine how he wants his property
secured.”); State v. Rome, 3 5 4 So. 2d 504, 506 (La. 1978) (inventory search not
sufficiently restricted in scope where officer did not attempt to ascertain wishes of
driver).

[¶23] The United States Supreme Court rejected a similar argument in Colorado v.
Bertine, 479 U.S. 367, 107 S. Ct. 738, 93 L. Ed. 2d 739 (1987), stating that “while giving
[the vehicle owner] an opportunity to make alternative arrangements would undoubtedly
have been possible . . . [t]he reasonableness of particular governmental activity does not
necessarily or invariably turn on the existence of alternative less intrusive means.” Id. at
373–74, 107 S. Ct. at 742 (quoting Illinois v. Lafayette, 462 U.S. 640, 647, 103 S. Ct.
2605, 2610, 77 L. Ed. 2d 65 (1983) (internal quotation marks omitted). Accord United
States v. Davis, 882 F.2d 1334, 1339 (8th Cir. 1989); People v. Clark, 357 N.E.2d 798,
800–01 (Ill. 1976). See also Johnson, ¶ 17, 137 P.3d at 907 (“[I]n order to fulfill the
purposes behind inventory searches, it is reasonable to conduct an inventory before
releasing any items from an impounded vehicle.”).

[¶24] We also decline to adopt a rule which would require police officers to explore
alternative means of safeguarding a vehicle before beginning the process of impounding
it, and instead hold that “[a]n impoundment is warranted when it is part of routine
administrative caretaking functions of the police . . . or when it is authorized by state
statute.” Woodford, 752 N.E.2d at 1281 (citations omitted) (internal quotation marks
omitted). We believe that “[a] single familiar standard is essential to guide police
officers, who have only limited time and expertise to reflect on and balance the social and
individual interests involved in the specific circumstances they confront.” Bertine, 479
U.S. at 375, 107 S. Ct. at 743 (quoting Lafayette, 462 U.S. at 648, 103 S. Ct. at 2610).

[¶25] Appellant further contends that Trooper Templeton was not authorized by statute
to impound the vehicle, claiming that Wyoming Statute § 31-13-104 “clearly allows for
vehicles to be left on a roadway if not abandoned.” In addition, he claims that Trooper


                                              6
Templeton did not make a written inventory of the vehicle’s contents as required by the
policy, actually referring to the contents of a written policy in one of this Court’s prior
decisions.

[¶26] Section 31-5-508(c)(iii) allows police officers to “remove or cause to be removed
to the nearest garage or other place of safety any vehicle found upon a highway when . . .
the person driving or in control of the vehicle is arrested for an alleged offense for which
the officer is required by law to take the person arrested before a proper judge without
unnecessary delay.” Wyo. Stat. Ann. § 31-5-508(c)(iii) (LexisNexis 2013). Trooper
Templeton arrested Appellant on the outstanding warrant, and W.R.Cr.P. 5(a) required
that Appellant be brought before a judicial officer without unnecessary delay. The statute
therefore allowed Trooper Templeton to take possession of Appellant’s vehicle and
inventory it in anticipation of actual towing and impoundment.2

[¶27] As already discussed, the record also reflects that Trooper Templeton was
following a Highway Patrol policy which was the sort of established police procedure or
protocol referred to in the case law. The prosecutor did not introduce the inventory
policy itself at the suppression hearing. However, Trooper Templeton testified that the
policy requires him to take possession of a vehicle operated by someone he arrests, and to
conduct an inventory, unless he can immediately release the vehicle to a passenger. The
policy then requires a written or recorded audio inventory of the vehicle’s contents.
Trooper Templeton testified that he inventoried Appellant’s vehicle on video and that the
contents of the video are in fact committed to writing in his report of the encounter.3

[¶28] This testimony provided an adequate basis for the district court to determine the
requirements of the WHP inventory policy and that Trooper Templeton complied with it.
See Perry v. State, 927 P.2d 1158, 1165 (Wyo. 1996) (“We have not required that
2
  See, e.g., People v. Nash, 947 N.E.2d 350, 364 (Ill. Ct. App. 2 Dist. 2011) (inventory search proper
because impoundment of vehicle mandated by traffic laws); People v. Turner, 91 A.D.2d 646, 646–47
(N.Y. App. Div. 1982) (inventory search authorized because unregistered vehicle was validly
impounded); Diomampo v. State, 185 P.3d 1031, 1042–43 (Nev. 2008) (inventory search justified
because impoundment of vehicle required under two separate portions of Nevada’s traffic laws); 61A
C.J.S. Motor Vehicles § 1527 (2012) (impoundment of vehicle authorized where officer required to arrest
driver and take the person immediately before a magistrate); see also Opperman, 428 U.S. at 369, 96 S.
Ct. at 3097 (“The authority of police to seize and remove from the streets vehicles impeding traffic or
threatening public safety and convenience is beyond challenge.”).
3
  The WHP inventory policy evidently required a written inventory receipt in the past. See Shaw v. State,
2009 WY 18, ¶ 13, 201 P.3d 1108, 1111 (Wyo. 2009) (“The trooper explained that Wyoming Highway
Patrol policy requires that, whenever a vehicle is to be towed and impounded, the vehicle must be
inventoried and troopers must complete a Vehicle Inventory Receipt.”); Johnson, ¶ 15, 137 P.3d at 907
(WHP inventory policy stated that “the vehicle and contents shall be inventoried and recorded on the
proper form.”). However, Trooper Templeton testified that the policy now permits electronic recordings
of a vehicle’s contents. This change is hardly surprising in light of the availability of ICOP and similar
recording programs used by law enforcement officers across the country.


                                                     7
standard police procedures with respect to impoundment and inventory searches be in
writing. Instead, we have accepted testimony by police officers of the standards and their
testimony that the appropriate procedures were followed in a particular situation.”)
(citations omitted). The inventory policy does not permit “so much latitude that
inventory searches are turned into a purposeful and general means of discovering
evidence of crime,” and it in fact vests very little discretion in the individual officer. See
Wells, 495 U.S. at 4, 110 S. Ct. at 1635 (quoting Bertine, 479 U.S. at 376, 107 S. Ct. at
743 (Blackmun, J., concurring)) (internal quotation marks omitted).

[¶29] In summary, we agree with the district court that the untimely arrival of
Hunnicutt-Carter’s father is simply an instance of bad timing from Appellant’s
perspective, and that the inventory was not a ruse to allow Trooper Templeton to
rummage through the vehicle in search of contraband. Cf. United States v. Beal, 430 F.3d
950, 954 (8th Cir. 2005) (inventory search reasonable where sole occupant of vehicle
arrested, even though the registered owner appeared after the search to claim the vehicle
before actual impoundment). The district court did not therefore err in finding that a
good-faith inventory took place pursuant to a valid policy.

                                      CONCLUSION

[¶30] The district court did not err in denying Appellant’s motion to suppress, and the
judgment and sentence of the district court are therefore affirmed.




                                               8
