Police run the gamut of very intelligent to having spelling and grammar errors embarrassingly galore on their police reports. Sadly, plenty of otherwise intelligent criminal suspects think they can outsmart police. Even the most unintelligent police officer has the advantage over suspects by not being the one cornered as a suspect, and by knowing the basics of the courts’ exceptions to and watering down of limits on police search and seizure power and of the right  of suspects to remain silent.

If a person repeatedly drives down the road with contra, and in his or her car, s/h increases the chance that the contraband will be found each time s/he hits the road, even when dealing with one of the more unintelligent police officers. A case in point is inventory searches.

Police must love when they are authorized to tow away suspect’s car — for instance when  drunk driving arrestee is stopped and arrested on an interstate highway with no sober passenger to drive away the car — because the towing opportunity also gives police an opportunity to thoroughly search and inventory the car, lest the suspect later accuse the police of stealing or failing to secure personal property in the car. Inventory searches often sound like police officers’ cynical end runs around Gant v. Arizona, 556 U.S. 332 (2009), which prohibits police from automatically searching an arrestee’s vehicle incident to arrest.

Nevertheless, I have had clients caught by police with contraband in their cars, typically marijuana, and they keep doing it. It reminds me of the experiment done on alcoholics where they received an electric shock every time they reached for a drink of alcohol, but kept drinking the alcohol anyway. For plenty of people, some behaviors are too irresistible for them to change their behavior.

Last week, the Virginia Court of Appeals reminded us of the broad authority that police have for conducting inventory searches of vehicles that they are allowed to have towed away, but also reminded us that police must follow established inventory search procedures. For that reason, any time that one’s criminal defense client is charged with possessing contraband discovered through an inventory search, the criminal defense lawyer needs to fight tooth and nail against the legitimacy of the particular inventory search procedures, and to expose the extent to which the established inventory search procedures were not followed by the searching police. Fauntleroy v. Virginia, ___ Va. App. ___ (July 30, 2013).

Here is some key language from Fauntleroy:

– “[O]ne of the recognized exceptions to the warrant requirement is the inventory search” exception. Girardi [v. Com.], 221 Va. [459] at 463, 270 S.E.2d at 745-46 [(1980)].

– The inventory search exception derives from what the United States Supreme Court has called law enforcement’s “community caretaking functions.” See South Dakota v. Opperman, 428 U.S. 364, 369 (1972).

– In Williams v. Commonwealth, 42 Va. App. 723, 594 S.E.2d 305 (2004), this Court held that the police may conduct a warrantless inventory search of a vehicle provided the following conditions are met: 1) the vehicle must be lawfully impounded; 2) the impoundment and subsequent search must be conducted pursuant to standard police procedures; and 3) the impoundment and subsequent search must not be a pretextual surrogate for an improper investigatory motive. Id. at 731, 594 S.E.2d at 309; see also King v. Commonwealth, 39 Va. App. 306, 310-11, 572 S.E.2d 518, 520 (2002) (same).

The foregoing reference to Williams v. Commonwealth is a key roadmap for criminal defense lawyers to challenge inventory searches. First, the police must have the authority to have the automobile towed in the first place, and it must be lawfully impounded. Second, the impoundment and subsequent search must be conducted pursuant to standard police procedure, so the criminal defense lawyer should ordinarily obtain said procedures in advance of the suppression hearing. Third, the impoundment and subsequent search must not be done on a pretext for an improper investigatory motive, which means that the trial judge must allow the criminal defense lawyer to conduct complete cross examination of the police to determine whether any such improper motive was at play in the inventory search.

For Gant to have real teeth, inventory searches must be challenged tooth and nail.