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State v. Ingram

Supreme Court of Iowa

June 29, 2018

STATE OF IOWA, Appellee,
v.
BION BLAKE INGRAM, Appellant.

          Appeal from the Iowa District Court for Jasper County, Steven J. Holwerda, Judge.

         Defendant appeals his conviction for possession of methamphetamine.

          Mark C. Smith, State Appellate Defender, and Mary K. Conroy, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney General, for appellee.

          APPEL, JUSTICE.

         In this case, a driver challenges the constitutionality of an inventory search of his vehicle, which was to be towed after police discovered it was not lawfully registered. After conducting a search, the police found a controlled substance. The district court denied the driver's motion to suppress, and he was convicted of possession. The driver argues this search was unconstitutional under the Fourth Amendment of the United States Constitution. Alternatively, even if the Federal Constitution does not prohibit warrantless inventory searches under these particular circumstances, the driver argues article I, section 8 of the Iowa Constitution provides greater protections.

         We accept the invitation to restore the balance between citizens and law enforcement by adopting a tighter legal framework for warrantless inventory searches and seizures of automobiles under article I, section 8 of the Iowa Constitution than provided under the recent precedents of the United States Supreme Court. In doing so, we encourage stability and finality in law by decoupling Iowa law from the winding and often surprising decisions of the United States Supreme Court. In the words of another state supreme court, we do not allow the words of our Iowa Constitution to be "balloons to be blown up or deflated every time, and precisely in accord with the interpretation of the U.S. Supreme Court, following some tortious trail." Penick v. State, 440 So.2d 547, 552 (Miss. 1983). We take the opportunity to stake out higher constitutional ground today.

         I. Facts and Procedural Background.

         At about 6:39 a.m. on October 30, 2015, a police officer pulled over Bion Ingram, who was driving on Highway 14 in Newton, Iowa. The officer had noticed the vehicle's license plate was not illuminated as required. After speaking with Ingram, the officer also noticed the vehicle's registration sticker did not match its license plate-the vehicle's actual registration had expired in 2013. Because of the registration violation, the officer decided to impound the vehicle and told Ingram it would be towed.

         The officer did not arrest Ingram at that point but had him sit in the patrol vehicle while the officer wrote citations for the traffic violations. Ingram told the officer he was going to work, and the officer agreed to drive Ingram to a nearby gas station for Ingram's friend to pick him up and take him to work. Ingram asked to be able to retrieve his work items from the vehicle, but the officer did not allow Ingram to do this until the officer finished writing the citations.

         The officer told Ingram the contents of the vehicle would be inventoried before towing and asked Ingram if there was anything of value in the vehicle. Ingram said there was nothing of value in the vehicle. Another officer arrived and inventoried the contents of the vehicle. The officers did not obtain a warrant to search the vehicle.

         During the inventory, the second officer discovered a black cloth bag on the floor next to the gas pedal. When the officer opened the bag, the officer discovered a glass pipe and what field tests revealed to be almost a gram of methamphetamine. Ingram was arrested.

         Ingram was charged by trial information with possession of methamphetamine, second offense, and charged by citation with possession of drug paraphernalia. Ingram filed a motion to suppress the results of the search based on the Fourth Amendment of the United States Constitution and article I, section 8 of the Iowa Constitution. Ingram argued the search violated his rights under the Fourth Amendment and article I, section 8. Ingram contended the inventory search should not have been conducted and the vehicle impoundment was a pretext to search the vehicle. The State resisted. The district court held a hearing on the motion to suppress and denied the motion on the ground that inventory searches are an exception to the warrant requirement.

         Ingram was tried on the minutes on March 30, 2016. The judge found Ingram guilty of both charges on April 4. Ingram appealed and we retained the appeal.

         On appeal, Ingram argues the district court erred by (1) denying his motion to suppress because the inventory searched violated the United States and Iowa Constitutions and (2) finding there was sufficient evidence that he knowingly possessed a controlled substance. Ingram also argues he received ineffective assistance of counsel when his trial counsel failed to challenge the admissibility of the results of the field drug test. Because we hold that Ingram's motion to suppress should have been granted, we do not reach the other issues.

         II. Standard of Review.

         We review the denial of a motion to suppress on constitutional grounds de novo. State v. Wilkes, 756 N.W.2d 838, 841 (Iowa 2008); State v. Heuser, 661 N.W.2d 157, 161 (Iowa 2003).

         III. Iowa vs. United States Constitution.

         This case involves a challenge to a warrantless inventory search and seizure of an automobile under the search and seizure provisions of the Iowa and United States Constitutions. At the outset, it is important to emphasize that this court is the ultimate arbiter of the meaning of the search and seizure clause of article I, section 8 of the Iowa Constitution, while the United States Supreme Court has the final say in interpreting the search and seizure provision of the Fourth Amendment to the United States Constitution.

         The Fourth Amendment provides, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. Amend. IV. Article I, section 8 of the Iowa Constitution requires that "[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable seizures and searches shall not be violated." Iowa Const. art. I, § 8.

         Although the Iowa and United States Constitutions have similarly worded search and seizure provisions, that does not mean the two regimes and the cases under them may be conflated. We jealously reserve the right under our state constitutional provisions to reach results different from current United States Supreme Court precedent under parallel provisions. See, e.g., Zaber v. City of Dubuque, 789 N.W.2d 634, 654 (Iowa 2010); Wilkes, 756 N.W.2d at 842 n.1; Kingsway Cathedral v. Iowa Dep't of Transp., 711 N.W.2d 6, 9 (Iowa 2006). As has been noted by other state courts before us, it would amount to malpractice for lawyers not to understand the potential for an independent state court interpretation under the state constitution that is more protective of individual rights. State v. Lowry, 667 P.2d 996, 1013 (Or. 1983) (en banc) (Jones, J., concurring specially); Commonwealth v. Kilgore, 719 A.2d 754, 757 (Pa. Super. Ct. 1998); State v. Jewett, 500 A.2d 233, 234 (Vt. 1985); see also State v. Baldon, 829 N.W.2d 785, 816 (Iowa 2013) (Appel, J., concurring specially). The caselaw and law commentaries now groan with the volume and weight of ample materials for lawyers to construct independent state constitutional law varying from applicable federal precedent. See State v. Short, 851 N.W.2d 474, 489-91 (Iowa 2014); State v. Ochoa, 792 N.W.2d 260, 264- 65 & nn.2-3 (Iowa 2010).

         The growth of independent state constitutional law is important in the search and seizure context. Unlike the decisions of the United States Supreme Court in recent years, which generally have sought to minimize the scope of individual protection under the Fourth Amendment, our recent caselaw under the search and seizure provision of the Iowa Constitution has emphasized the robust character of its protections. See, e.g., State v. Coleman, 890 N.W.2d 284, 299 (Iowa 2017); State v. Gaskins, 866 N.W.2d 1, 6-7 (Iowa 2015); Short, 851 N.W.2d at 482-85; Baldon, 829 N.W.2d at 833-34; Ochoa, 792 N.W.2d at 274. We have repeatedly declined to follow the approach of the United States Supreme Court in its interpretation of what one commentator has referred to as an ever-shrinking Fourth Amendment. See Gaskins, 866 N.W.2d at 12-13; Short, 851 N.W.2d at 506; Baldon, 829 N.W.2d at 803 (majority opinion); Ochoa, 792 N.W.2d at 291; see generally Silas J. Wasserstrom, The Incredible Shrinking Fourth Amendment, 21 Am. Crim. L. Rev. 257 (1984).

         In this case, Ingram raises his challenge under the search and seizure provisions of both the Fourth Amendment of the United States Constitution and article I, section 8 of the Iowa Constitution. Ingram's argument under the United States Constitution cites to federal cases that generally provide warrantless inventory searches of automobiles are permissible, if they are conducted pursuant to policies adopted by law enforcement which govern the decision to impound the vehicle and the nature and scope of any subsequent search. See Florida v. Wells, 495 U.S. 1, 4, 110 S.Ct. 1632, 1635 (1990); United States v. Kennedy, 427 F.3d 1136, 1144 (8th Cir. 2005).

         The challenge raised by Ingram under the search and seizure provision of article I, section 8 of the Iowa Constitution has different dimensions. Ingram notes a number of state courts have rejected the two-pronged policy approach of the United States Supreme Court in favor of a more restrictive approach that sharply limits warrantless searches and seizures of automobiles. See, e.g., State v. Daniel, 589 P.2d 408, 417-18 (Alaska 1979); State v. Lucas, 859 N.E.2d 1244, 1251 (Ind.Ct.App. 2007); State v. Mangold, 414 A.2d 1312, 1318 (N.J. 1980); State v. Hite, 338 P.3d 803, 809 (Or. Ct. App. 2014).

         When a party raises claims under both the Federal and State Constitutions, this court has generally held we retain the discretion whether to proceed to analyze the case in the first instance under the State or Federal Constitution. State v. Pals, 805 N.W.2d 767, 772 (Iowa 2011). In contrast, some states adopt a primary-state-law approach to dual constitutional claims, where the court will almost or mostly always consider state constitutional claims before moving on to consider federal constitutional claims. See State v. Kono, 152 A.3d 1, 27 (Conn. 2016) (explaining when federal law is unclear or defendant not entitled to relief thereunder, court will consider state constitutional claim first); Malyon v. Pierce County, 935 P.2d 1272, 1277 (Wash. 1997) (en banc) (stating when the issue is adequately briefed, court will analyze the state constitutional issue first); see generally Eric M. Hartmann, Note, Preservation, Primacy, and Process: A More Consistent Approach to State Constitutional Law, 102 Iowa L. Rev. 2265, 2282 (2017).

         Although the primary approach has attractive features, it also has problems. Notwithstanding the caselaw developing independent state constitutional law, trial court records often reveal counsel had not raised an independent state constitutional argument at all. When this occurs, appellate counsel must advance an ineffective-assistance-of-counsel claim to preserve the issue. When a double-barreled preservation problem occurs, namely, where the state constitutional issue is not raised in the district court and the failure to do so is not presented as an ineffective-assistance-of-counsel claim on appeal, we decline to reach the state constitutional issues. See State v. Prusha, 874 N.W.2d 627, 629-30 (Iowa 2016).

         Minimally better, counsel sometimes have merely added a citation to article I, section 8 of the Iowa Constitution but then generally adopted federal caselaw in describing the claim. Where state constitutional law claims have been minimally preserved in this fashion, we may, in our discretion, decide the case based on potentially dispositive federal constitutional grounds and save our state constitutional interpretation for another day. In the alternative, we may apply the federal standards in a fashion more stringent than under federal caselaw. See Pals, 805 N.W.2d at 772. Given the inconsistent presentation of state constitutional claims in our cases, we have so far declined to adopt a primary approach that requires us to consider and resolve state constitutional claims prior to addressing federal constitutional claims. Baldon, 829 N.W.2d at 821-22 (Appel, J., concurring specially).

         In this case, however, Ingram raised the Iowa constitutional issue in the district court. In his appellate briefing, Ingram has specifically urged us to follow a different approach to warrantless inventory searches under the Iowa Constitution than has been employed by recent cases of the United States Supreme Court and, to the extent the claim was not preserved in the district court, has raised an ineffective-assistance claim. We will proceed to consider the state constitutional issues.

         IV. Warrantless Inventory Searches and Seizures of Automobiles Under Article I, Section 8 of the Iowa Constitution.

         A. Overview of Constitutional Choices.

         1. Introduction.

         Constitutional interpretation of open-textured provisions of a state constitution is always about choice. See Todd E. Pettys, Judicial Discretion in Constitutional Cases, 26 J.L. & Pol. 123, 124 (2011). Judicial development of open-textured constitutional provisions is not a mathematical exercise, inexorably leading to a provable answer. See Gompers v. United States, 233 U.S. 604, 610, 34 S.Ct. 693, 695 (1914) ("But the provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic, living institutions transplanted from English soil."), disapproved of on other grounds by Bloom v. Illinois, 391 U.S. 194, 211, 88 S.Ct. 1477, 1487 (1968). As judges, in interpreting open-textured provisions of the Iowa Constitution, it is our duty to select from possible plausible alternative approaches the best approach to reflect the important constitutional values underlying the text. State constitutional law is not about proofs, but about informed choices.

         In order to consider the proper framework for analyzing the validity of warrantless inventory searches and seizures involving automobiles under article I, section 8 of the Iowa Constitution, it is helpful to lay out the various constitutional choices made by the United States Supreme Court and the courts of other states under state constitutional search and seizure provisions. The constitutional choices made by the United States Supreme Court and other state courts are, of course, not binding upon us, but they may broaden our constitutional perspectives, may provide us with helpful insights, and may help guide the ultimate resolution of the Iowa constitutional issue before us. With respect to the cases of the United States Supreme Court, we must be attentive to Justice Harlan's often-quoted observation that because of federalism concerns, the Supreme Court may underenforce constitutional norms in its interpretation of federal constitutional provisions when they are applied against the states, Ker v. California, 374 U.S. 23, 44, 83 S.Ct. 1623, 1645-46 (1963) (Harlan, J., concurring), and to the equally often-quoted and somewhat sheepish observation by the Supreme Court that states are free to adopt approaches more protective of liberty under their state constitutions, Bustop, Inc. v. Board of Education of Los Angeles, 439 U.S. 1380, 1382, 99 S.Ct. 40, 41 (1978). In short, we look to the decisions of other courts, including the decisions of the United States Supreme Court, not because they are authoritative, but in the hope their logic and rationales may be persuasive. Ochoa, 792 N.W.2d at 267; Kingsway Cathedral, 711 N.W.2d at 9.

         2. Approach to warrantless inventory searches and seizures involving automobiles prior to recent United States Supreme Court cases.

         We begin with a brief review of state and federal cases prior to recent United States Supreme Court cases related to warrantless inventory searches and seizures of automobiles. As will be seen below, the cases are rich and varied.

         For example, a leading early state court case is Mozzetti v. Superior Court, 484 P.2d 84 (Cal. 1971) (en banc). The Mozzetti court began by discussing the privacy interests involved in searches of automobiles. Id. at 88. According to the court,

It seems undeniable that a routine police inventory of the contents of an automobile involves a substantial invasion into the privacy of the vehicle owner. Regardless of professed benevolent purposes and euphemistic explication, an inventory search involves a thorough exploration by the police into the private property of an individual.

Id.

         In analyzing the government's interest in a warrantless inventory search of an automobile, the Mozzetti court observed, "[I]tems of value left in an automobile to be stored by the police may be adequately protected merely by rolling up the windows, locking the vehicle doors and returning the keys to the owner." Id. at 89. Turning to the issue of protecting the defendant or the police against theft or tort claims, the court noted if the article was either stolen before the inventory or perhaps innocently omitted when the inventory was taken, the inventory documentation would be of little use. Id. at 89-90; see also People v. Nagel, 95 Cal.Rptr. 129, 133 (Ct. App. 1971) (holding warrantless inventory search of impounded car after red light violation invalid, as there was no apparent reason why driver could not have driven vehicle to nearby place for safekeeping); Virgil v. Super. Ct., 73 Cal.Rptr. 793, 795 (Ct. App. 1968) (holding warrantless inventory search of impounded car invalid since there was no reason why passengers in the car could not have taken charge of the vehicle and driver was not consulted with respect to his automobile); Charles E. Moylan, Jr., The Inventory Search of an Automobile: A Willing Suspension of Disbelief, 5 U. Balt. L. Rev. 203, 216-20 (1976) [hereinafter Moylan].

         The Mozzetti court's skepticism about the efficacy of an inventory search protecting police against false claims was repeated by an Arizona court of appeals in In re One 1965 Econoline, 495 P.2d 504, 508 (Ariz.Ct.App. 1972), rev'd, 511 P.2d 168 (Ariz. 1973) (en banc). The Arizona appellate court observed,

We fail to see how the taking of an inventory will insulate the police against false accusations of theft and assure the property owner that his property will not be taken. Unscrupulous persons who desire to steal articles will simply not list them on the inventory. Owners who wish to assert spurious claims against law enforcement officers or the garage owners can simply claim that the officers did not list them on the inventory.

Id. at 508-09; see Moylan, 5 Balt. L. Rev. at 217-18.

         Some early state court cases held law enforcement must explore the possibility of making alternate arrangements for a vehicle with an owner or driver before impoundment occurs. See, e.g., Miller v. State, 403 So.2d 1307, 1314 (Fla. 1981) (analyzing search under Fourth Amendment and search and seizure provisions of Florida Constitution), overruled by State v. Wells, 539 So.2d 464, 469 (Fla. 1989); Strobhert v. State, 301 S.E.2d 681, 682 (Ga. 1983) (discussing search and seizure generally, not indicating specific constitutional provisions); State v. Fortune, 689 P.2d 1196, 1203 (Kan. 1984) (ruling under Fourth Amendment and search and seizure provisions of Kansas Constitution).

         There are also a number of early state court cases holding containers may not be opened pursuant to a warrantless inventory search. For example, the Alaska Supreme Court held a warrantless search of luggage, containers, or packages in an automobile violated the search and seizure provisions of the Alaska Constitution. Daniel, 589 P.2d at 417-18. Similarly, the Alaska Supreme Court also held closed containers taken from a person before incarceration may not be further opened or searched except pursuant to a warrant unless there is a recognized exception to the warrant requirement. Reeves v. State, 599 P.2d 727, 735-36 (Alaska 1979). A number of other state cases similarly held warrantless inventory searches of closed containers invalid under the Fourth Amendment and/or state constitutional search and seizure provisions. See State v. Gwinn, 301 A.2d 291, 296 (Del. 1972) (finding search of satchel during warrantless inventory of automobile not necessary for protection of owner and risk satchel might contain explosives or dangerous substance too conjectural to justify search under Fourth Amendment); People v. Dennison, 378 N.E.2d 220, 224 (Ill.App.Ct. 1978) (holding warrantless inventory search may not extend to toolbox under Fourth Amendment); State v. Jewell, 338 So.2d 633, 639- 40 (La. 1976) (holding under Fourth Amendment and search and seizure provisions of Louisiana Constitution, warrantless search of an over-the-counter pill bottle was not conducted pursuant to a legitimate inventory search, but even if it had been, a true inventory search would never involve examining contents of a pill bottle); State v. Downes, 591 P.2d 1352, 1354 (Or. 1979) (en banc) (holding exigent circumstances must exist to justify warrantless inventory search of closed container under Fourth Amendment); State v. Prober, 297 N.W.2d 1, 12 (Wis. 1980) (search of purse pursuant to warrantless inventory search unlawful under Fourth Amendment and search and seizure provisions of Wisconsin Constitution), overruled by State v. Weide, 455 N.W.2d 899, 904 (Wis. 1990) (holding Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738 (1987), requires rejection of Prober in Fourth Amendment analysis and declining to adopt independent standard under Wisconsin Constitution).

         There are early warrantless inventory search and seizure cases, however, that provided more leeway to law enforcement. For example, in Cabbler v. Commonwealth, the Virginia Supreme Court upheld a warrantless inventory search of an automobile under the Fourth Amendment pursuant to a police department policy to protect the property of an arrested citizen. 184 S.E.2d 781, 783 (Va. 1971). In Warrix v. State, the Wisconsin Supreme Court held a warrantless inventory search of a car in police custody was proper under the Fourth Amendment in order to protect police from claims of theft of personal property. 184 N.W.2d 189, 194 (Wis. 1971). The Minnesota Supreme Court held a warrantless inventory search pursuant to a standard procedure was a reasonable measure under the Fourth Amendment to protect the car and its contents after it was impounded by the police. City of St. Paul v. Myles, 218 N.W.2d 697, 699, 701 (Minn. 1974); see also State v. Tully, 348 A.2d 603, 609-10 (Conn. 1974) (holding warrantless search of motor vehicle was acceptable under the Fourth Amendment); People v. Sullivan, 272 N.E.2d 464, 469 (N.Y. 1971) (holding warrantless search was reasonable within the Fourth Amendment); State v. Criscola, 444 P.2d 517, 519-20 (Utah 1968) (upholding warrantless search under the Fourth Amendment). As will be seen below, cases like Cabbler foreshadowed the later approach of the United States Supreme Court to warrantless inventory search and seizure involving automobiles.

         3. Approach to warrantless inventory searches and seizures involving automobiles in recent cases of the United States Supreme Court.

         In recent years, the United States Supreme Court has narrowly construed the search and seizure protections contained in the Fourth Amendment. In particular, it has placed less emphasis on the warrant requirement and embarked on an ever-increasing expansion of exceptions to the warrant requirement. While the traditional touchstone of Fourth Amendment law under prior Supreme Court cases was the warrant requirement, see, e.g., Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2032 (1971); Katz v. United States, 389 U.S. 347, 356-57, 88 S.Ct. 507, 514 (1967); Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 1257 (1958), the new innovative touchstone under the more recent Supreme Court cases is a free-floating and open-ended concept of "reasonableness" that is unhinged from the warrant requirement expressly contained in the Fourth Amendment, see, e.g., Maryland v. King, 569 U.S. 435, 448, 133 S.Ct. 1958, 1970 (2013); Wilson v. Arkansas, 514 U.S. 927, 931, 115 S.Ct. 1914, 1916 (1995); O'Connor v. Ortega, 480 U.S. 709, 728-29, 107 S.Ct. 1492, 1503 (1987).

         The field of warrantless inventory search and seizure has been no exception to this general revisionist trend away from the traditional Fourth Amendment warrant requirement. See Silas J. Wasserstrom, The Court's Turn Toward a General Reasonableness Interpretation of the Fourth Amendment, 27 Am. Crim. L. Rev. 119, 127, 148 (1989). The recent approach of the United States Supreme Court is to allow warrantless inventory searches and seizures of automobiles by law enforcement authorities, provided they are conducted pursuant to generally applicable local policy requirements that are "reasonable." Bertine, 479 U.S. at 371-72, 107 S.Ct. at 741.

         Under the United States Supreme Court cases, the nature and scope of the warrantless search must be conducted pursuant to a standardized local policy. See Wells, 495 U.S. at 4, 110 S.Ct. at 1635; Bertine, 479 U.S. at 376, 107 S.Ct. at 743 (Blackmun, J., concurring); South Dakota v. Opperman, 428 U.S. 364, 383, 96 S.Ct. 3092, 3104 (1976) (Powell, concurring). If the warrantless impoundment of the vehicle and the warrantless search of the vehicle are authorized by reasonable local policy, the warrantless inventory search passes constitutional muster. See Wells, 495 U.S. at 4, 110 S.Ct. at 1635. Under the Supreme Court approach, there is no requirement that local police inventory policies use the least intrusive means to advance the goals of law enforcement. Illinois v. Lafayette, 462 U.S. 640, 647, 103 S.Ct. 2605, 2610 (1983). A warrantless inventory search and seizure might be invalid if the accused can show the government action was "in bad faith or for the sole purpose of investigation," a very high bar. Bertine, 479 U.S. at 372, 107 S.Ct. at 741 (majority opinion).

         Because of its emphasis on local policy determined by law enforcement, constitutionally permissive warrantless searches pursuant to an inventory process may vary from jurisdiction to jurisdiction. It allows local law enforcement culture to be brought to bear in expanding or contracting the scope of Fourth Amendment rights through adoption of broad or narrow warrantless inventory search and seizure policies. Thus, under the Fourth Amendment, whether a container may be searched as part of a warrantless inventory process may turn on the policies of the jurisdiction where the search occurred. Plainly, the Supreme Court's approach accommodates, and was no doubt animated by, federalism concerns.

         Under the federal approach, local law enforcement, and not independent and impartial judges, may set the contours of the substantive protections for liberty under the Fourth Amendment in the field of warrantless inventory searches through the crafting of local policy. This empowerment of local law enforcement to determine the substance of Fourth Amendment protections in the context of warrantless inventory searches and seizures of automobiles is rich with irony, as the Fourth Amendment was explicitly designed as a bulwark to restrain law enforcement in the context of searches and seizures. Under the United States Supreme Court precedent, local law enforcement is authorized to restrict itself, a process unlikely to provide robust protections to persons drawn into the warrantless inventory search and seizure net and more likely to reflect law enforcement convenience.

         The United States Supreme Court also has not required a warrantless inventory search and seizure policy be in writing, but instead the policy may be established by custom and practice. See Bertine, 479 U.S. at 373 n.5, 107 S.Ct. at 742 n.5 (discussing testimony of other police officer regarding the vehicle inventory procedures); United States v. Betterton, 417 F.3d 826, 830 (8th Cir. 2005) ("While a written policy may be preferable, testimony can be sufficient to establish police impoundment procedures."). When policies are not in writing, there may be evidentiary difficulties regarding whether a policy is, in fact, in place, and if so, what exactly is the policy.

         There is irony here, too, in the lack of a requirement that the warrantless inventory search policy be in writing. One of the requirements of a traditional Fourth Amendment law is that a warrant be in writing. The writing requirement ensures there is no dispute regarding the showing of probable cause made by law enforcement officers or regarding the scope of the warrant itself. It prevents after-the-fact justifications by law enforcement. The notion that an ex ante writing prevents post hoc judgments has been an important part of search and seizure law for a long time. See, e.g., United States v. Sharpe, 470 U.S. 675, 694, 105 S.Ct. 1568, 1580 (1985); United States v. Martinez-Fuerte, 428 U.S. 543, 565, 96 S.Ct. 3074, 3086 (1976); Opperman, 428 U.S. at 383, 96 S.Ct. at 3104; United States v. ...


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