from the Iowa District Court for Jasper County, Steven J.
appeals his conviction for possession of methamphetamine.
C. Smith, State Appellate Defender, and Mary K. Conroy,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Kyle Hanson, Assistant
Attorney General, for appellee.
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.
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.
Facts and Procedural Background.
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.
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.
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.
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.
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.
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.
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.
Standard of Review.
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).
Iowa vs. United States Constitution.
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.
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.
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).
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
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).
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.
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).
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
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).
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
Warrantless Inventory Searches and Seizures of Automobiles
Under Article I, Section 8 of the Iowa Constitution.
Overview of Constitutional Choices.
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.
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.
Approach to warrantless inventory searches and seizures
involving automobiles prior to recent United States Supreme
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.
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.
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].
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.
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
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).
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.
Approach to warrantless inventory searches and seizures
involving automobiles in recent cases of the United States
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).
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.
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).
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
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.
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.
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. ...