Florida v. Wells/Concurrence Brennan
Justice BRENNAN, with whom Justice MARSHALL joins, concurring in the judgment.
I agree with the Court that the judgment of the Florida Supreme Court should be affirmed because the Florida Highway Patrol had no policy at all with respect to opening closed containers. As the majority recognizes, see ante, at 4 and this page, the search was therefore unconstitutional under any reading of our cases. See Colorado v. Bertine, 479 U.S. 367, 374, 107 S.Ct. 738, 742, 93 L.Ed.2d 739 (1987) (opening closed container found in a vehicle during an inventory search constitutional only because policy mandated opening of such containers). Our cases have required that inventory searches be "sufficiently regulated," ante, this page, so as to avoid the possibility that police will abuse their power to conduct such a search. See South Dakota v. Opperman, 428 U.S. 364, 384, 96 S.Ct. 3092, 3104, 49 L.Ed.2d 1000 (1976) (Powell, J., concurring) ("[N]o significant discretion is placed in the hands of the individual officer: he usually has no choice as to the subject of the search or its scope").
The facts of this case demonstrate a prime danger of insufficiently regulated inventory searches: police may use the excuse of an "inventory search" as a pretext for broad searches of vehicles and their contents. In this case, there was no evidence that the inventory search was done in accordance with any standardized inventory procedure. Although the State characterized the search as an inventory search in the trial court, it did not point to any standard policy governing inventory searches of vehicles (much less to any policy governing the opening of closed containers) until the case reached the Florida Supreme Court. At that time, which was after our decision in Bertine, supra, the Florida Highway Patrol entered the case as amicus curiae and argued that Chapter 16 of the "Florida Highway Patrol Forms and Procedural Manual" contained the standard policy that guided the conduct of the search in this case. The Florida Supreme Court concluded that the manual did not provide any policy for the opening of closed containers. App. 256. But it now appears that the Florida Supreme Court may have been under the misapprehension that the manual was in effect at the time of the search in this case. See Tr. of Oral Arg. 30-31. The State conceded at oral argument before this Court that the manual was not in effect at the time of the search in this case, but argued nonetheless that the officer had performed the search according to "standard operating procedures" that were later incorporated into the Highway Patrol Manual. See id., at 17 ("The rules and regulations which . . . came into effect shortly thereafter, merely codified what the Florida Highway Patrol was doing to all procedures [sic ] during that period of time"). But the State did not offer any evidence at the suppression hearing to support a finding that Trooper Adams performed the inventory according to "standard operating procedures." Trooper Adams testified that he asked his immediate superior whether he should impound and inventory the car but that his superior left it to Adams' discretion, stating that he found nothing suspicious about the car. Trooper Adams testified that he "took it upon [himself] to go ahead and have the car towed." App. 88. He also testified that he thought that opening the suitcase was part of a proper inventory but that he did not ask anyone else's opinion until after the search was completed. Id., at 82-83. He testified "Well, I had to take my chances." Id., at 83.
In addition, there was no evidence that an inventory was actually done in this case: [t]he State introduced neither an inventory sheet nor any testimony that the officer actually inventoried the items found in respondent's car. Tr. of Oral Arg. 5, 25-26. Rather, the testimony at the suppression hearing suggests that the officer used the need to "inventory" as an excuse to search for drugs. The testimony establishes that after arresting respondent for driving under the influence of alcohol and accompanying him to the station house, Trooper Adams returned to the impound lot to conduct the inventory search at 1:30 a.m. Grover Bryan, who assisted the state trooper with the inventory, testified at the hearing that Trooper Adams told him that "he wanted to inventory the car good, he wanted to go through it real good because he felt that there was drugs in it." App. 141. According to Bryan, Adams' desire to inventory the car stemmed from the fact that there was a large amount of cash lying on the floor of the car when respondent was arrested. Bryan testified that Adams insisted that contraband would be found in the car because "[t]here ain't nobody runs around with that kind of money in the floorboard unless they're dealing drugs or something like that." Id., at 142; see ibid. ("[H]e felt that the money that they had found was from a drug deal"). When they finally found the locked suitcase in the trunk, Bryan testified that Adams "want[ed] in the suitcase" because he "had a strong suspicion there was drugs in that car and it was probably in that suitcase." Id., at 145. The men then spent 10 minutes prying open the lock on the suitcase with two knives. App. 82, 147. Bryan testified that once they opened the suitcase and found a bag of marijuana inside, "[Adams] was quite excited. He said 'there it is.' " Id., at 147. See also Tr. of Oral Arg. 24 ("Well, to be quite frank, the officer as he got further and further along in his search, got hungrier and hungrier").
The majority finds it unnecessary to recount these facts because it affirms the Florida Supreme Court on the narrow ground, clearly established by Opperman and Bertine, that police may not be given total discretion to decide whether to open closed containers found during an inventory search. With this much I agree. Like Justice BLACKMUN, post, at 11-12, however, I cannot join the majority opinion because it goes on to suggest that a State may adopt an inventory policy that vests individual police officers with some discretion to decide whether to open such containers. See ante, at 4 ("A police officer may be allowed sufficient latitude to determine whether a particular container should or should not be opened in light of the nature of the search and characteristics of the container itself"). This suggestion is pure dictum given the disposition of the case. But as Justice BLACKMUN notes, post, at 11, there is a danger that this dictum will be relied on by lower courts in reviewing the constitutionality of particular inventory searches, or even by local policymakers drafting procedures for police to follow when performing inventories of impounded vehicles. Thus, I write separately to emphasize that the majority's suggestion is inconsistent with the reasoning underlying our inventory search cases and relies on a mischaracterization of the holding in Bertine.
Our cases clearly hold that an inventory search is reasonable under the Fourth Amendment only if it is done in accordance with standard procedures that limit the discretion of the police. See Opperman, 428 U.S., at 384, 96 S.Ct., at 3104 (Powell, J., concurring). In Bertine, the Court held that the police may open closed containers found within an impounded vehicle only if the inventory policy mandates the opening of all such containers. See 479 U.S., at 374, n. 6, 107 S.Ct., at 742, n. 6 ("We emphasize that, in this case, the trial court found that the Police Department's procedures mandated the opening of closed containers and the listing of their contents"). Contrary to the majority's assertion today, ante, at 3, Bertine did not establish that police may exercise discretion with respect to the opening of closed containers during an inventory search. The statement in Bertine that "[n]othing in Opperman . . . prohibits the exercise of police discretion so long as that discretion is exercised according to standard criteria," 479 U.S., at 375, 107 S.Ct., at 743, was made in response to an argument that the inventory search was unconstitutional because the police had some discretion to determine whether to impound the car. The Court's conclusion that the opening of defendant's backpack was constitutional was clearly premised on the city's inventory policy that left no discretion to individual police officers as to the opening of containers found inside a car once it was impounded. See id., at 374, n. 6, 107 S.Ct., at 742, n. 6. Justice BLACKMUN's concurrence in Bertine could not be clearer: "[I]t is permissible for police officers to open closed containers in an inventory search only if they are following standard police procedures that mandate the opening of such containers in every impounded vehicle." Id., at 377, 107 S.Ct., at 744 (emphasis added). 
Opening a closed container constitutes a great intrusion into the privacy of its owner even when the container is found in an automobile. See Arkansas v. Sanders, 442 U.S. 753, 762-764, 99 S.Ct. 2586, 2592-93, 61 L.Ed.2d 235 (1979); United States v. Chadwick, 433 U.S. 1, 13, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538 (1977). For this reason, I continue to believe that in the absence of consent or exigency, police may not open a closed container found during an inventory search of an automobile. See Bertine, 479 U.S., at 387, 107 S.Ct., at 749 (MARSHALL, J., joined by BRENNAN, J., dissenting).  In any event, in Bertine, the Court recognized that opening a container constitutes such a great intrusion that the discretion of the police to do so must be circumscribed sharply to guard against abuse. If the Court wishes to revisit that holding, it must wait for another case. Attempting to cast doubt on the vitality of the holding in Bertine in this otherwise easy case is not justified.
^1 Indeed, the majority's suggestion that police may be vested with discretion to open a container "in light of the nature of the search and characteristics of the container itself," ante, at 4, flatly contradicts the reasoning in Bertine. In that case, the Court rejected the argument that police are required to "weigh the strength of the individual's privacy interest in the container against the possibility that the container might serve as a repository for dangerous or valuable items." Bertine, 479 U.S., at 374, 107 S.Ct., at 742. The Court found such a rule unworkable for " 'it would be unreasonable to expect police officers in the everyday course of business to make fine and subtle distinctions in deciding which container or items may be searched and which must be sealed as a unit.' " Id., at 375, 107 S.Ct., at 743, quoting Illinois v. Lafayette, 462 U.S. 640, 648, 103 S.Ct. 2605, 2610, 77 L.Ed.2d 65 (1983); see also 479 U.S., at 375, 107 S.Ct., at 743 ("We reaffirm these principles here: [a] single familiar standard is essential to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront") (internal quotations omitted).
^2 The Court has recognized that an inventory search potentially can serve three governmental interests: protection of the owner's valuables, protection of the police from false claims of theft or damage, and protection of the police from danger. South Dakota v. Opperman, 428 U.S. 364, 369, 96 S.Ct. 3092, 3097, 49 L.Ed.2d 1000 (1976); id., at 378, 96 S.Ct., at 3101 (Powell, J., concurring). The Court has concluded that routine inventory searches are constitutional because these government interests outweigh an individual's diminished expectation of privacy in a car. Id., at 378-379, 96 S.Ct., at 3101-02 (Powell, J., concurring). I do not agree that these interests justify the opening of a closed container in which an individual retains a significant expectation of privacy. See Bertine, supra, 479 U.S., at 382-387, 107 S.Ct., at 746-749 (Marshall, J., dissenting). Indeed, I do not see how the treatment of the luggage in this case prying open the lock with two knives-served any of these governmental interests.