This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-97-1385

State of Minnesota,

Respondent,

vs.

Jesse Salvador Rosillo, III,

Appellant.

Filed June 30, 1998

Reversed

Huspeni, Judge

Washington County District Court

File No. KX963367

Clayton M. Robinson, Jr., 315 Ryan Avenue, St. Paul, MN 55102 (for appellant)

Hubert H. Humphrey III, Attorney General, Suite 1400, NCL Tower, 445 Minnesota St., St. Paul, MN 55101; Thomas J. Foley, Washington County Attorney, Jay A. Brunner, Asst. County Attorney, 14900 61st St. N., P. O. Box 6, Stillwater, MN 55082-0006 (for respondent)

Considered and decided by Huspeni, Presiding Judge, Short, Judge, and Willis, Judge.

U N P U B L I S H E D O P I N I O N

HUSPENI, Judge

Appellant challenges the district court's denial of his motion to suppress evidence obtained during an inventory search of his vehicle. Because the inventory search was not conducted according to any standardized police procedure, we reverse.

FACTS

At 1:00 a.m. on July 8, 1996, a Ramsey County Deputy Sheriff observed a 1996 GMC Yukon leave the Oneka Ridge Golf Course at a high rate of speed. When the deputy stopped the vehicle, he discovered appellant Jesse Rosillo, owner of the vehicle, and two passengers inside. While speaking to the occupants, the deputy observed that a crow bar that he had previously seen in the back seat of the vehicle had suddenly been moved to between the driver's seat and the front passenger's seat. Because the vehicle was stopped in Washington County, the deputy contacted the Washington County Sheriff's Department to request assistance in checking for a possible break-in at the golf course.

At the golf course, the Washington County deputies discovered that the front door to the club house was open, speaker wires were disconnected, and cabinets were opened. Appellant and the two passengers of his vehicle were taken into custody on suspicion of attempted burglary. A cursory search of appellant's vehicle was done at the scene, but, because it had begun to rain, the vehicle was taken to the Washington County impound lot.

At the impound lot, Sergeant Jay Kimble conducted an inventory search of the vehicle; inside he discovered screwdrivers, tennis shoes, six pagers, one cellular phone, a camera, a box of Ziplock baggies, and some "dope notes." As part of the search, Sergeant Kimble looked under the hood of the vehicle and discovered a storage compartment. Inside the compartment, Sergeant Kimble found $2,000 in cash, a remote starter and burglar alarm for the vehicle, two bags containing 1.89 grams and 1.82 grams of methamphetamine, a folded piece of paper containing .5 grams of methamphetamine, and one bag containing .58 grams of crack cocaine.

Appellant was charged with possession of a controlled substance with intent to sell in violation of Minn. Stat. 152.024, subd. 2(2) (1996) and possession of one or more mixtures of a controlled substance in violation of Minn. Stat. 152.025, subd. 2(1) (1996). Appellant's motion to suppress the evidence taken in conjunction with the inventory search was denied by a district court judge. The case was submitted on stipulated facts to a different judge of the district court, and appellant was convicted on both counts.

D E C I S I O N

[W]hen reviewing a pre-trial order suppressing evidence where the facts are not in dispute and the trial court's decision is a question of law, the reviewing court may independently review the facts and determine, as a matter of law, whether the evidence need be suppressed.

State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992) (citations omitted).

"[I]nventory procedures serve to protect an owner's property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger." Colorado v. Bertine, 479 U.S. 367, 372, 107 S. Ct. 738, 741 (1987). "[I]nventory procedures administered in good faith and conducted pursuant to standardized criteria, and not for the sole purpose of investigation, satisfy the fourth amendment." State v. Ailport, 413 N.W.2d 140, 145 (Minn. App. 1987), review denied (Minn. Nov. 18, 1987) (citing Bertine, 479 U.S. at 374, 107 S. Ct. at 742).

Appellant argues that his Fourth Amendment rights were violated because the inventory search was merely a pretext for an investigation for evidence and was not conducted pursuant to any standard police procedure.

1. Inventory search as a pretext

The district court found that a good-faith inventory search was Sergeant Kimble's "primary objective." Appellant urges, however, that because Sergeant Kimble testified that he searched under the hood of appellant's vehicle to look for evidence of a crime and he did not fill out a vehicle tow report, the inventory search was a pretext for a criminal investigation.

After the district court reached its decision in this case, the Minnesota Supreme Court released State v. Holmes, 569 N.W.2d 181 (Minn. 1997). In Holmes, the supreme court suppressed a gun that was discovered by a University of Minnesota police officer during an inventory search of the locked glove box of the defendant's car. The supreme court held that because the officer's "sole motivation" was to locate the gun that belonged to a magazine clip found in the defendant's pocket, the officer's inventory search was only a pretext for a search for the weapon. Id. at 189.

The supreme court noted that according to University of Minnesota policy, because the parking lot monitor ordered the defendant's vehicle be towed, she was required to do the inventory search of the vehicle. Id. at 188. In addition, the court noted that the police officer who discovered the gun was in charge of criminal investigations and did not ask the parking monitor whether she had conducted an inventory search before looking in the defendant's vehicle. Id. As a result, the court inferred that the officer had no interest in conducting an inventory search of the vehicle. Id. at 188-89. [1]

In Holmes, the court addressed the principle established in Bertine that inventory searches not be conducted in bad faith or for the sole purpose of investigation:

Admittedly, such rules are difficult to administer, but at least one commentator has suggested that faith is "bad" and investigative purpose "sole" only when an inventory search that otherwise would not have occurred is brought about.

Id. at 188.

Whether Sergeant Kimble's inventory search was a pretext for a search for evidence of a crime is a close question. The frailties of the search in Holmes are not readily apparent here. The stipulated facts indicate that Sergeant Kimble was conducting a more thorough inventory search of the vehicle because the search at the scene was interrupted by inclement weather. In contrast to the officer in Holmes, Sergeant Kimble testified that he has been conducting inventory searches for nine years and that he does so to prevent claims of theft by owners of impounded vehicles.

Although Sergeant Kimble did testify that he looked under the hood to check for further evidence of a crime, he also testified that:

It used to be that our inventory tow form had on it a place to check for battery, motor, that type of thing. The form has changed since back when I was on patrol and using that form, but it has been my standard practice all the time in case the thing gets impound B inventoried and impounded at a tow lot. And then the owner comes and says, where is my battery? You know, was the battery there when the car was found, or was it stolen while it was in the tow lot?

(Emphasis added.)

While this testimony may, indeed, indicate a mixed motive, the supreme court in Holmes explained that an "ulterior motive does not by itself invalidate an inventory search." Id. at 187 (citations omitted).

We recognize that the district court did not have the benefit of the supreme court's decision in Holmes at the time it addressed the nature of the inventory search here. Nonetheless, we defer to the district court's ability to judge the integrity and persuasiveness of witnesses and to its broad discretion in decision-making.

2. Standard police procedure

Even if we accept the district court's determination that the inventory search was not a pretext for a search for evidence, we cannot end our analysis with that conclusion. The supreme court in Holmes, addressing the reasoning of Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769 (1996), stated "we can find the search * * * to be a reasonable inventory search only if police followed standard procedures in conducting the search, and only if police conducted the search, at least in part, for the purpose of obtaining an inventory." Holmes, 569 N.W.2d at 188 (emphasis added); see also, Bertine, 479 U.S. at 374, 107 S. Ct. at 742 n.6 ("Our decisions have always adhered to the requirement that inventories be conducted according to standardized criteria."). [2]

Therefore, we read Holmes and Bertine to require that Sergeant Kimble's actions in looking under the hood of appellant's vehicle must have been justified by some standardized police procedure. Sergeant Kimble testified that his department policy previously required looking under the hood to check the battery, but that the requirement has since been omitted. Consistent with this testimony, the district court concluded that Washington County's policies and procedures "do not set out any specifics with respect to how an inventory search is to be conducted." Nonetheless, the court held that "[t]here is nothing * * * to suggest that an inventory search would not include a search under the hood of the vehicle." Recognizing again that the district court did not have the benefit of the supreme court's opinion in Holmes, we must disagree with the district court on this point.

In Florida v. Wells, 495 U.S. 1, 4, 110 S. Ct. 1632, 1635 (1990), the United States Supreme Court upheld the suppression of a garbage bag containing marijuana that was discovered when the Florida Highway Patrol (FHP) opened a locked suitcase during an inventory search. The court held that because the evidence was discovered in a closed container and the FHP had no policy regarding the opening of closed containers during an inventory search, the search was not sufficiently regulated to satisfy the Fourth Amendment. Id. at 4-5, 110 S. Ct. at 1635; see also Bertine, 479 U.S. at 375, 107 S. Ct. at 743 (reaffirming the principle that "a single familiar standard is essential to guide police officers, who have only limited time and expertise to reflect on and balance social and individual interests involved in the specific circumstances they confront."). Though the court in Wells noted that police should be afforded some discretion during inventory searches, in the absence of any specific policy, the FHP's search violated the Fourth Amendment. Id.

The analysis in Wells indicates that although Sergeant Kimble has some discretion in conducting an inventory search, that search must be conducted according to standard procedure. We believe that in omitting the requirement to look under the hood of an impounded vehicle from its standard vehicle tow-in report, Washington County affirmatively removed the activity from its standard procedure. In view of this removal, the fact that Sergeant Kimble has always looked under the hoods of vehicles during the past nine years cannot justify that practice.

Sergeant Kimble was not following standard procedure when he looked under the hood of appellant's vehicle. As in Wells, absent a specific policy, this action was outside standard police procedure and the inventory search of appellant's vehicle violated his Fourth Amendment rights. Because the evidence discovered under appellant's hood should have been suppressed, we reverse appellant's conviction. [3]

Reversed.

[1] In Holmes, the supreme court reversed this court which, in upholding the admissibility of evidence, had characterized the officer's actions as a "more thorough" inventory search. State v. Holmes, No. C5-96-901, unpub. op. at 2 (Minn. App. Nov. 22, 1996).

[2] The court in Holmes did not address the issue of standardized police procedure because its ruling on the pretextual issue was dispositive. Id.

[3] Respondent State of Minnesota argues in the alternative that the search could be considered a valid search incident to an arrest. See State v. White, 489 N.W.2d 792, 794 (Minn. 1992) ("[W]hen a police officer has made a lawful custodial arrest of the occupant of an automobile, the officer may, as a contemporaneous incident of the arrest, search the passenger compartment of the car and any containers found within the passenger compartment."). The "bright-line" test established in White does not apply to this case, however, because a search under the hood of a vehicle is a search of the engine compartment and not the "passenger compartment." Id. Even if White could be extended to include a search under the hood of a vehicle, the test also states that the search must be a "contemporaneous incident" of the arrest. In the present case, the search was conducted one day after the arrest. It was not a valid search incident to an arrest.