Sunday, December 18, 2005

When Attacking an Inventory Search, Follow the "Guide"

The NYS Supreme Court 2nd Department has given us a few end of the year decisions to write about.Over the next few posts I am going to try to bring a few to you. The decision in People v Elpenord 2005 NY Slip Op 09327 reminds defense counsel that when confronted with an inventory search, one of the things that you must do is to make sure you hold police to their procedures. Fortunately the procedure they must follow is in the Patrol Guide.

In Elpenord the Nassau County Police Department received a radio run for shots fired. The 911 call was devoid of description of person or vehicle (it was alleged a car sped away from the scene.) The police see a speeding car in the vicinity of the shooting scene and try to pull the car over. It leads them on a chase and finally when pulled over the driver is without a valid license or registration. He tells police the vehicle belongs to his mother (it did) and that she gave him permission to use the car(she had.) Police pull him out of the vehicle for speeding. They then allegedly search the car to inventory the contents. The trial court held that the search was legal even though the officers failed to take any of the steps necessary to conduct an inventory search of the vehicle including filling out an inventory search form or even noting the search in their memo books. (In fairness they did start to fill out the form but stopped when they found a gun in a black bag in the trunk)

The Court noted that inventory searches at the scene of a valid vehicle and traffic law arrest are only permitted when they are "conducted in accordance with standard police procedures which limit the discretion of the searching officer (see People v Galak, 80 NY2d 715, 718). Such searches advance three specific objectives: protecting the owner's property while the police retain custody of the vehicle, insuring the police against claims of lost or stolen property, and guarding the police against dangers that might otherwise go undetected (see Colorado v Bertine, 479 US 367, 372; People v Galak, supra; see also People v Cammock, 144 AD2d 375). "In its modern Fourth Amendment jurisprudence, the [United States] Supreme Court has held that the reasonableness of a search is calculated by weighing the governmental and societal interests advanced by the search against the individual's right to be free from arbitrary interference by law enforcement officers" (People v Galak, supra at 118, citing Colorado v Bertine, supra). "While the discovery of incriminating evidence may be a consequence of an inventory search, it should not be its purpose" (People v Russell, 13 AD3d 655, 657). It is the People's burden to demonstrate the legality of police conduct in the first instance (see People v Thomas, 291 AD2d 462, 463)."
The court found that the search neither protected the property of the citizen nor did it protect the police department against an unwarranted claim for stolen property and thus was a pretext search. The court thus overturned the conviction for the weapon possession and ordered the defendant sentenced on the violations.

If confronted with an inventory search it would be wise if the defense counsel asked the Prosecutor for a copy of the patrol guide. It would be a good idea to subpeona it if they will not give it to you. This case can be used to back up the need to have the item. Remember when issuing a subpeona for a governmental agency, you must have the subpeona So Ordered by a court.

If you are aware of a case or decision that would be helpful to trial lawyers who practice in either the Eastern or Southern District of the US District Court or the First or Second Departments of the NY State Supreme Court, please send me an E-mail at

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