This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Thomas V. Anthony,
Filed January 20, 2004
Gordon W. Shumaker, Judge
Scott County District Court
File No. K-00-19605
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Patrick J. Ciliberto, Scott County Attorney, Susan K. McNellis, Assistant County Attorney, Scott County Government Center, 200 West Fourth Street, Shakopee, MN 55379 (for respondent).
Marshall W. Anthony, 400 South Front Street, St. Peter, MN 56082; and
Richard F. Faust, 401 South First Street, #520, Minneapolis, MN 55401 (for appellant)
Considered and decided by Schumacher, Presiding Judge; Randall, Judge; and Shumaker, Judge.
GORDON W. SHUMAKER, Judge
Appellant challenges the district court’s denial of his motion to suppress marijuana and methamphetamine that the police found during a search of a car in which appellant was riding, claiming that the search was an unconstitutional inventory search. Because the search was lawful, we affirm.
Dale Sillman was driving a car with a broken taillight along Highway 169 at 3:25 a.m. on July 8, 2000, in Belle Plaine. Appellant Thomas Anthony was Sillman’s only passenger. Noticing the defective taillight, Officer Darin Cizek stopped the car at the crest of a hill near an intersection. As the officer spoke to Sillman, he noticed that both Sillman and his passenger appeared to be very nervous. Officer Cizek’s records check showed that Sillman’s driver’s license was under suspension, that Anthony’s license had been cancelled, and that the car was registered to a third person.
Because there was no eligible driver, Officer Cizek told the men that the car would be impounded. He asked the men to sit in the squad car, and, because they were both bigger than he, the officer requested another squad to assist.
Jordan police officer Brian Stolt arrived, and Officer Cizek told him that the car was going to be impounded and asked him to help with the search. During the search, the officers found large bags of suspected marijuana, a rock-shaped substance that appeared to be crystallized methamphetamine or crack cocaine, a small white paper, and a digital scale. Officer Cizek then arrested Sillman and Anthony for possession of controlled substances.
Officer Cizek filed a “Vehicle Impoundment and Inventory Record” with his department. Although he indicated the reason for the impoundment as “D.A.S. - vehicle posted hazard on hill/curve of roadway, passenger license is cancelled I.P.S.[,] narcotics,” he did not list any of the items the officers found in the search. These included both controlled substances and various personal property. At trial, Sillman testified that he had construction tools in the car, consisting of “a couple of saws, miter saw, several hand tools, [and] a couple drills.” Officer Cizek testified that he must have forgotten to list items other than the narcotics.
At the omnibus hearing, defense counsel challenged the stop, the detention of Sillman and Anthony, the search, the arrest, and any statements obtained. Defense counsel did not claim that the inventory search was a mere ruse for an unconstitutional motor-vehicle search, which is Anthony’s claim on appeal.
At oral argument, Anthony conceded that the broken taillight on the car Sillman was driving provided a proper basis for a police stop; that it was permissible to ask Sillman for his driver’s license; that it was permissible to ask Anthony for his driver’s license; that, because both driver and passenger were ineligible drivers, it was proper to impound the car; that it was appropriate to conduct an inventory search of the impounded vehicle; and that the police department had a policy and standards for impounding and searching. But Anthony’s claim is that the ostensible inventory search was merely a pretext or a ruse to cover an unconstitutional search for contraband.
The district court did not rule on this precise issue because defense counsel only generally challenged the legality of the search. But in determining that the impoundment and ensuing search were proper, the district court necessarily rejected all suggestions of illegality regarding the search.
When a suppression order is challenged on appeal, we independently review the facts and the law to determine whether the district court erred in suppressing or refusing to suppress evidence. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). The question of the constitutionality of a search is subject to de novo review. State v. Olson, 634 N.W2d 224, 228 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001). But we defer to the district court as to credibility assessments, and we will reverse only if we find clear error. State v. Doren, 654 N.W.2d 137, 141 (Minn. App. 2002), review denied (Minn. Feb. 26, 2003).
Subject to established exceptions, warrantless searches and seizures are unreasonable and are prohibited by the constitutions of Minnesota and the United States. U. S. Const. amend. IV; Minn. Const. art I, § 10; State v. Munson, 594 N.W.2d 128, 135 (Minn. 1999). An inventory search is a well-established exception to the warrant requirement. South Dakota v. Opperman, 428 U.S. 364, 371, 96 S. Ct. 3092, 3098 (1976); City of St. Paul v. Myles, 298 Minn. 298, 300-01, 218 N.W.2d 697, 699 (1974).
Inventory searches require neither a warrant nor probable cause. Illinois v. Lafayette, 462 U.S. 640, 643-44, 103 S. Ct. 2605, 2608 (1983). Such searches are held to be reasonable “because police are performing administrative or caretaking functions designed to serve two distinct interests: the protection of the owner’s property inside the vehicle, and the protection of the police from claims that they lost or damaged property within their control.” State v. Holmes, 569 N.W.2d 181, 186 (Minn. 1997).
An inventory search that also has an investigative purpose will not be considered invalid for that reason alone. Id. at 187. But officers must not act in bad faith or search for the sole purpose of investigating. Id. “[A]n inventory search must not be used as a ruse for a general rummaging in order to discover incriminating evidence.” Id. (quoting Florida v. Wells, 495 U.S. 1, 4, 110 S. Ct. 1632, 1635 (1990)). The Holmes court adopted a commentator’s suggestions “that faith is ‘bad’ and investigative purpose ‘sole’ only when an inventory search that otherwise would not have occurred is brought about.” Holmes, 569 N.W.2d at 188 (quoting 3 Wayne R. LaFave, Search and Seizure § 7.5(d), at 589-90 (3d ed. 1996)). In Holmes, a parking-enforcement monitor impounded a vehicle for having unpaid parking tickets. An assisting police officer, in an effort to determine whether the driver had a license, decided to place the driver in a squad car. Before allowing the driver to enter the squad, she patted him down, felt a hard object, and discovered that it was an ammunition clip for a pistol. The officer followed with a search of the vehicle that discovered a pistol for which the driver had no permit. The driver challenged the search; the state contended that it was a proper inventory search. Applying the LaFave standard, the supreme court fashioned the test for determining the validity of the inventory search:
Under this standard, we must ask whether the police officer in the case at bar would have conducted an “inventory” search had she not first discovered the magazine clip. If the answer is yes, and we conclude that her actions substantially complied with the procedure, then the search was a valid inventory search. But if the answer is no, then her search was not a valid inventory search.
The court noted that the search was done by a criminal investigator, rather than the parking monitor whose obligation it was to inventory the impounded vehicle, and that the officer had no interest in creating an inventory, as shown by the fact that the state did not present any inventory sheets or any other notation regarding the driver’s personal property. Thus, the court answered its test question in the negative and held that the officer’s sole motive for searching was to discover the pistol.
Our facts are different. First, before the search, the officer announced to Sillman and Anthony that the car would be impounded and towed. Second, between the impoundment and the beginning of the search, the officer had no suspicion of additional illegality. He noted the men’s nervousness but that gave him concern only for his personal safety. Third, the officer who made the impoundment also conducted the search. Fourth, the officer did create an inventory sheet on which he described the car, listed the names of the driver and the registered owner, stated the reason for the impoundment, noted the presence of “narcotics,” indicated the location of the car, and noted the towing service and the place to which the car was to be towed. But he did not list the inventoried property. Sixth, the officer did not make an arrest until after he found controlled substances in the car.
Unlike the situation in Holmes, in which the officer found an ammunition clip that aroused her suspicion that there was a gun in the car, there are no preliminary facts here that might have prompted an investigative search. Except for the incomplete inventory report, the officer fully complied with police department policy and procedure for dealing with an impounded vehicle.
Anthony suggests that from the incomplete inventory report we can infer that Officer Cizek’s sole motive was to investigate and not to inventory. A more compelling inference is that the officer’s intention was simply to inventory a properly impounded vehicle, as evidenced by his completion of the required background information on the inventory form. Then, when the officer started the inventory search, he almost immediately found narcotics, and that became the focus of his attention and a distraction from the formality of completing the inventory form that he had begun to use. That Officer Cizek began an “inventory” search seems indisputable on this record. He had a duty to impound the car, and he did so. He had a duty to perform an inventory search of the impounded vehicle. He filled out the first part of the inventory form. He started the search that he was duty-bound to perform. If the search became principally investigative thereafter, the inventory-basis is not nullified. Holmes, 569 N.W.2d at 187. Thus, we would answer the Holmes test question in the affirmative, that is, this inventory search would have happened no matter what police discovered because it was mandatory under police department standards.