COMMENT
Is THE FOURTH AMENDMENT DOOMED FOR EXTINCTION?
I.
INTRODUCTION
On January 14, 1987, the United States Supreme Court altered the course of fourth amendment' jurisprudence by rendering a novel and crucial decision in Colorado v. Bertine2 Before
Bertine, profuse case law left the lower courts divided and confused as to the permissible scope3 of a reasonable automobile inventory search.4 After Bertine, there can be no uncertainty as to
1. The full text of the fourth amendment reads as follows:
The right of the people to be secure in their persons, houses, papers, and ef-
fects, against unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or
things to be seized.
U.S. CONST. amend. IV.
2. 107 S. Ct. 738 (1987).
3. Anderson, Inventory Searches, 110 MIL. L. REv. 95-96 (1985). See, e.g., People v.
Williams, 67 Cal. 2d 226, 430 P.2d 30, 60 Cal. Rptr. 472 (1967) (inventory of car trunk
held lawful). But see Williams v. United States, 412 F.2d 729 (5th Cir. 1969) (inventory
search of car trunk disallowed). Compare People v. Godwin, 94 Mich. App. 286, 288
N.W.2d 354 (1980) (inventory search of locked glove compartment upheld) (decision
later overruled on other grounds) with State v. Miller, 420 A.2d 181 (Del. Super. Ct.
1980) (inventory search of locked glove compartment held unlawful). See also South Dakota v. Opperman, 428 U.S. 364, 370-72, 376 n.10, 380 n.7 (1976) (car inventory search
which extended to unlocked glove compartment upheld). Opperman confused the lower
courts because it did not elucidate the permissible scope beyond unlocked glove compartments. Bertine, 107 S.Ct. at 741 n.4. The Court failed to address the issue of locked
glove compartments, trunks or closed containers. Id.
4. Opperman, 428 U.S. at 375. See Reamy, Reevaluating the Vehicle Inventory, 19
CRIM. L. BULL. 325-27 (1983) (analytical survey of car inventory cases and procedures).
Generally, a lawful and reasonable inventory search follows a lawful towing and impoundment. Opperman, 428 U.S. at 375. See Reamy, supra, at 326-27. The police have
custody of the vehicle and have an implied duty to protect it along with its contents. See
Opperman, 428 U.S. at 373, 379, and Reamy, supra, at 335 & n.53, 338 n.59. The police
responsibility is somewhat analogous to that of a bailee. Cf. Reamy, supra, at 325-26.
According to Anderson, supra note 2, at 95 n.l: " 'Inventory search' is really a misnomer
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where the present Court stands.' First, the Court held that
lice could open all closed containers found in vehicles during
course of a routine inventory.6 Second, the Court abolished
use of the traditional ad hoc balancing test 7 to determine
pothe
the
the
in that 'inventory' connotes a benign, caretaking function whereas 'search' connotes an
investigative activity undertaken to uncover crime or its fruits."
5. Anderson, supra note 2, at 96, 114. The Bertine decision typifies the recent retrogressive trends of the present Court, where individual privacy rights are consistently
overwhelmed by "important" government interests. E.g., Illinois v. Lafayette, 462 U.S.
640 (1983) (inventory search of contents of defendant's shoulderbag held proper prior to
incarceration for disturbing the peace); South Dakota v. Opperman, 428 U.S. 364 (1976)
(warrantless car inventory search of unlocked glove compartment upheld).
Certain exceptions to the fourth amendment warrant protection also appear to be
expanding and converging, thereby becoming even broader. For some legal experts, these
formidable exceptions signal the erosion of cherished fourth amendment rights. For example, Justice Marshall indicates two such exceptions in Bertine when he states that
"the word 'automobile' is not a talisman in whose presence the [f]ourth [a]mendment
fades away and disappears. By upholding the search in this case, the Court not only
ignores that principle but creates another talisman to overcome the requirements of the
[f]ourth [a]mendment-the term 'inventory.'" Bertine, 107 S. Ct. at 749-50 (Marshall,
J., dissenting). See infra notes 26-28 and accompanying text for a listing and analysis of
other exceptions, including the "automobile" exception.
6. Bertine, 107 S. Ct. at 739, 743, 744.
7. Id. at 739, 743. Traditional fourth amendment jurisprudence acknowledges that
different contexts or facts and circumstances beget different issues, arguments, analyses
and results. Cooper v. California, 386 U.S. 58, 87 (1967) (inventory search of car impounded pursuant to state forfeiture statute upheld). Therefore, ad hoc balancing normally weighs all the factors and interests to determine constitutional reasonableness in
lieu of a protective warrant and probable cause. Opperman, 428 U.S. at 372-73. The
balancing test weighs reasonableness "under all the circumstances," so it is a "totality of
the circumstances" test. Id. at 373. Terminology such as "reasonableness test" or "standard of reasonableness" generally alludes to the classic balancing test. Id. In inventories
before Bertine, the Court balanced the individual's expectation of privacy against the
government's interests to determine whether the search was reasonable. Bertine, 107 S.
Ct. at 746 (Marshall, J., dissenting).
By way of contrast, a per se rule precludes balancing and ignores competing interests and factual distinctions. See Bertine, 107 S. Ct. at 739, 743. Instead of determining
reasonableness, the per se rule presumes it. Id. The dictates of such a rule apply equally
to all who are deemed to fall within its categorical domain. Id. In Coolidge v. New
Hampshire, 403 U.S. 443, 509-10 (1971), the Court held that an automobile search was
illegal and suppressed the evidence due to an invalid warrant and lack of exigency. Justice Black, concurring and dissenting, noted that the test of reasonableness could not be
fixed by per se rules because each case had to be decided on its own facts. Id. Similarly,
the Court in Bell v. Wolfish, 441 U.S. U.S. 520, 558-60 (1979) upheld a warrantless body
search of pretrial detainees only after balancing their privacy rights against the government's interest in maintaining jailhouse security. The majority held that balancing was
essential to safeguard rights in the absence of a warrant. Id. The Court also considered
the scope of the government intrusion, the manner in which it was conducted, the justification for initiating it, and the place in which it was conducted. Id.
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reasonableness' of the search. In its place, the Court fashioned a
sweeping, inflexible per se rule' to buttress its holding.' 0 The
Bertine rule legally endows carte blanche upon police officials to
conduct unlimited searches under the rubric of "inventory."
Colorado v. Bertine is the purported progeny of two controversial Supreme Court cases." In effect, Bertine combines with
them to create a powerful triumvirate for the recent expansion
of the inventory exception to the requirements of the fourth
amendment. 2 Traditionally, the basic purpose of the fourth
amendment has been to safeguard the privacy and security of
8. See supra note 7 for a discussion of both the balancing and the per se approach
to reasonableness. The constitutional requirement of "reasonableness" is really a negative implication of the fourth amendment, which prohibits unreasonable searches and
seizures. See supra note 1 for the pertinent text of the fourth amendment.
9. See supra note 7 for a definitive description of the per se approach. The imposition of this per se rule is undoubtedly the most controversial aspect of Colorado v. Bertine. See People v. Bertine, 706 P.2d 411 (Colo. 1985) (state court decision later reversed
by Colorado v. Bertine); Note, Illinois v. Lafayette: Has the Fourth Amendment Vanished in the Face of Administrative Expediency?, 21 CAL. W.L. REV. 218 (1984) (study of
inventory searches prior to Colorado v. Bertine); see also Brief of Amici Curiae for Respondent by the Colorado Criminal Defense Bar, Inc. and the National Association of
Criminal Defense Lawyers at 3, Colorado v. Bertine, 107 S. Ct. 738 (1987). Initially, the
rule functions as a "bright-line" guide for police authorities and lower courts. Bertine,
107 S. Ct. at 743. It "cures" the confusion and makes the law clear and predictable. Id.
In this respect, the Bertine rule has merit. Clarity, however, does not guarantee fairness,
and efficiency is a poor substitute for justice. See Note, supra, note 218. Unfortunately,
the purported "cure" may prove more harmful than the "disease," since it may produce
anomalous results. See Brief of Amici Curiae, supra, at 3. Conceivably, one party might
receive unjust treatment while the other receives a "windfall." Id. A rigid per se rule
oversimplifies and eliminates not only excessive, but all factual distinctions. See Bertine,
107 S. Ct. at 743. Individual privacy rights are entirely ignored, since they are no longer
weighed. Id. at 749 (Marshall, J., dissenting). The notion of a per se rule thus defies
traditional fourth amendment analysis. See Brief of Amici Curiae, supra at 3.
10. Bertine, 107 S. Ct. at 743. The Court characterizes the per se rule as a "[s]ingle
familiar standard . . . 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." Id. The same language appears in Lafayette, 462
U.S. at 648. See also New York v. Belton, 453 U.S. 454, 458 (1981) (search of jacket in
passenger compartment of vehicle upheld as lawful search incident since it was contemporaneous to lawful custodial arrest).
11. Bertine, 107 S. Ct. at 739, 743. The two cases are Illinois v. Lafayette, 462 U.S.
640 (1983) and South Dakota v. Opperman, 428 U.S. 364 (1976). See supra notes 5 and 3
for background information on both cases respectively.
12. U.S. CONST. amend. IV. See supra note 1 for the text of the fourth amendment.
Inventory is really a double exception in that the requirements of both a warrant and
probable cause have been deleted, although reasonableness is still required. See id. See
supra note 4 for an explanation and description of inventory.
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individuals against arbitrary invasions by government officials.1 3
Although inventory is an invasion, it is constitutional so long as
it is routine and non-discretionary, rather than arbitrary and investigative.1 " Bertine's rule encourages automatic inventories,
because it presupposes police impartiality and benevolence in
the absence of concrete proof to the contrary.1
This Comment will chart the development and analyze the
legality of the new automatic inventory1 6 expounded by the Bertine Court. Future ramifications and alternatives will be discussed. Since inventory is in pervasive use by law enforcement
agencies across the country,' 7 the ruling will affect almost every
motorist.' 8 This Comment will unmask the Bertine rule as a disturbing expansion of the good faith exception. 9 The focus will
13. Camara v. Municipal Court, 387 U.S. 523, 528 (1967) (in the absence of consent
or exigency, routine housing inspections require warrants, but not probable cause).
14. See Opperman, 428 U.S. at 364, 370-71, 376, 383. The police must conduct an
inventory search pursuant to administrative caretaking functions. Id. Exoneration from
investigative motive is thus essential, since evidence of such would rebut the non-discretionary factor, invalidate the inventory and render the stricter standard of probable
cause applicable. See Reamy, supra note 4, at 334. Without probable cause, the search
would then be held unconstitutional and illegal. Id.
15. See Bertine, 107 S. Ct. at 738-39, 741-42. The rule defers to routine police procedures as reasonable without question, thereby sanctioning "automatic" inventories. Id.
See also Reamy, supra note 4, at 325. However, such inventories can be particularly
dangerous due to the difficulty of distinguishing between bonafide, good faith "caretaking procedures" and subterfuges for an exploratory search to circumvent probable cause.
See Reamy, supra note 4, at 334.
16. See supra note 15 for an explanation of "automatic" inventory.
17. See Reamy, supra note 4, at 325 and Anderson, supra note 3, at 96-97, in which
the widespread use is emphasized.
18. Reamy, supra note 4, at 325. Generally, any vehicle may be lawfully seized,
towed, impounded and inventoried pursuant to (1) public safety statutes, (2) the owner's
consent or request, (3) post-traffic accidents where the owner is disabled, absent or unconscious in order to eliminate hazards and to ease the flow of traffic, (4) illegally parked
vehicles which block traffic and the owner is unavailable to move the vehicle, (5) stolen
and abandoned cars where police must identify and locate the owner and safeguard his
property (but if an owner abandons a car, he also abandons his expectation of privacy in
it), and (6) post-intoxication and custodial arrests where the owner is mentally or physically incapacitated, and no one else is available to drive or move the vehicle to a secure
area. Id. at 327-28. The new Bertine rule applies to all of the above commonplace
situations.
19. See supra notes 14, 15, and accompanying text for a discussion of the importance of good faith in inventory procedures. See also United States v. Leon, 468 U.S. 897
(1984) (evidence held admissible even though warrant found invalid, since police objectively and reasonably relied on its validity). The Leon Court established the good faith
exception to the exclusionary rule. See W. LAFAvE and J. ISRAEL,
CRIMINAL PROCEDURE
82
(abr. ed. 1985). Although not constitutionally mandated, the exclusionary rule is a pro-
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be on the need to strictly limit inventory as a narrowly tailored
exception. The Comment will also advocate a return to the more
reasonable, classic balancing test in order to safeguard shrinking
fourth amendment rights.20
II.
BACKGROUND
Generally, the fourth amendment requires that searches ensue from warrants approved by neutral and detached magistrates.2 1 The Supreme Court has held that warrantless searches
are per se unreasonable, "subject only to a few specifically established and well-delineated exceptions."2 2 Initially, the Court created four general exceptions to the warrant requirement of the
fourth amendment.2 Exigency 2' and plain view25 were the
broadest categories, followed by search incident to arrest 6 and
phylactic, judicially created remedy. Id. The rule suppresses evidence found in an illegal
search in order to deter police abuse. Id. Where police act in good faith, then, arguably
the purpose of the rule is not served, and evidence should not be suppressed. Id.
20. See supra note 7 for a discussion of the balancing test.
21. Camara v. Municipal Court, 387 U.S. 523, 532 (1967). The warrant promotes
and insures non-discretion, which in turn safeguards privacy rights. Id. at 528, 532.
22. Katz v. United States, 389 U.S. 347, 357 (1967) (electronic eavesdropping of
defendant's conversation in public phone booth was illegal search that violated his actual, subjective and reasonable expectation of privacy).
23. See supra note 1 for the text of U.S. CONsT. amend. IV. In the absence of a
warrant, the fourth amendment still requires probable cause or the reasonableness test.
Opperman, 428 U.S. at 372-73, 383. Usually, individual privacy interests and the government's interest in the intrusion will be weighed. Id. at 378-79. The classic test is "the
need to search balanced against the invasion it entails." Camara, 387 U.S. at 537.
24. See Camara, 387 U.S. at 540, where the Court referred to exigent housing inspections. Exigency means emergency. Id. In such circumstances, a warrant may be impracticable, so the Court excuses the warrant since the burden to obtain one frustrates
the purpose behind the search. Id. at 533. See also Schmerber v. California, 384 U.S. 757
(1966) (exigency to preserve evidence in blood sample of drunk driver).
25. See Katz, 389 U.S. at 361, where Justice Harlan, concurring, clarified the plain
view exception. "Plain view" generally entails no search, since the items seized are
clearly visible and "what a person knowingly exposes to the public. . . is not a subject of
[f]ourth [a]mendment protection." Id. at 351, 361. Therefore, the warrant is superfluous.
See id. However, plain view most often applies in conjunction with a legal search in
progress. See Coolidge v. New Hampshire, 403 U.S. 443 (1971) (plain view exception
clarified, but rejected). Assuming a valid prior intrusion, a permissible warrantless search
and seizure may extend only to objects that are "immediately apparent" as evidence and
"inadvertently" discovered. Id. at 466-71.
26. Chimel v. California, 395 U.S. 752 (1969). A lawful search incident to arrest
must occur contemporaneously with a lawful custodial arrest. Id. The primary rationale
is to protect the police officer from hidden weapons within the immediate control of the
arrestee. Id. at 764. Related justifications include prevention of the arrestee's escape or
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the general automobile exception.17 The notion of inventory supplemented and overlapped these categories" but was not specifically sanctioned by the Court until South Dakota v.
Opperman.2 9
At first, the Court refused to acknowledge the existence of
an inventory exception, even though the opportunity to do so
was present.3 0 The Court continued to rely on the four basic categories to justify warrantless searches."' Although the Court was
hesitant, it slowly began to carve out specific fact situations that
his destruction of the evidence. Id. See Belton, 453 U.S. at 454 for a lawful vehicle search
incident to arrest.
27. Carroll v. United States, 267 U.S. 132 (1925). The Carroll Court mandated that
motor vehicle mobility eliminated the need for a search warrant, because a vehicle could
leave the jurisdiction before police obtained one. Id. at 132, 153-54. Exigency to preserve
evidence thus justified a warrantless search, although probable cause was still required.
Id. Pervasive regulation of automobiles also created a diminished expectation of privacy
with respect to them. Opperman, 428 U.S. at 367-68. See also Cardwell v. Lewis, 417
U.S. 583, 590 (1974) (further justifying auto exception by stating that cars travel public
roads where both the occupants and contents are in plain view).
28. Anderson, supra note 3, at 103. See also Mozzetti v. Superior Court, 4 Cal. 3d
699, 484 P.2d 84, 94 Cal. Rptr. 412 (1971) (early inventory precedent). Unlike the auto
exception and exigency, inventory is non-investigative and does not require probable
cause. Id. at 706, 711-12, 484 P.2d at 88, 92, 94 Cal. Rptr. at 414, 416, 420. A search
incident to arrest does not require probable cause, because it is contemporaneous to a
probable cause arrest. Chimel, 395 U.S. at 752, 768. Plain view usually follows and extends a probable cause search, although it may also follow and limit an inventory search.
For an example of plain view in the probable cause context, see Coolidge, 403 U.S. at
443, 466-71. For an application of plain view to an inventory search, see Mozzetti, 4 Cal.
3d at 707, 484 P.2d at 89, 94 Cal. Rptr. at 417. The complexity of these converging
exceptions is readily apparent and suggests that the Supreme Court has anticipated most
fact situations.
29. 428 U.S. 364 (1976). See supra note 3 for a synopsis of Opperman.
30. See Preston v. United States, 376 U.S. 364 (1964). Factually, while Preston
qualified as the first inventory search case, the United States Supreme Court instead
chose to label it as an unlawful search incident to arrest. Id. at 367-68. The police in
Prestonfound the defendants in a parked vehicle and arrested them for vagrancy. Id. at
364-65. Subsequent to the arrest, the police removed the vehicle and later searched it in
the garage. Id. Items discovered in the car supported Preston's conviction for conspiracy
to rob a bank, but the Supreme Court held the evidence inadmissible, since the warrantless search was "too remote in time or place" to be a valid search incident to arrest. Id.
at 364-65, 367-68. The Court also perceived no exigency because the car was not mobile
and the defendants were safely in custody. Id. at 367-68. Therefore, the search was unreasonable. Id.
Anderson, supra note 3, at 97 states that the Supreme Court never addressed the
issue of inventory. The government sought to justify the administrative search only on
the grounds of search incident to arrest. Id. The notion of inventory search as a viable
alternative was neither suggested nor argued. Id.
31. See supra notes 24-27 for elaboration on the four basic categories.
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FOURTH AMENDMENT
alluded to the notion of inventory."2 These early decisions were
drawn narrowly, but they successfully laid the ground work for
the Court's acceptance of warrantless inventories as lawful and
reasonable under the fourth amendment. 3 Eventually, the Court
justified and crystallized the inventory exception by characterizing it as a routine, non-criminal "community caretaking
function." s4
Mozzetti v. Superior Courts was the most notable early
32. Cooper v. California, 386 U.S. 58 (1967) (extensive time delays); Harris v.
United States, 390 U.S. 234 (1968) (plain view during protective search). In Cooper, the
police arrested the defendant on a narcotics charge and impounded his vehicle in a garage. Cooper, 386 U.S. at 58. The California Health and Safety Code mandated that the
Vehicle be held there as evidence until the Court declared a forfeiture or ordered a release. Id. at 60. One week after the defendant's arrest, the police searched the car and
found evidence which led to the defendant's conviction. Id. at 58. The proceedings declaring forfeiture did not take place until four months after the car's seizure. Id. at 61.
Using an ad hoc balancing test, Justice Black stated that it would be unreasonable to
prevent the police from conducting a protective search of the car when they were obligated to retain it in their custody for such a length of time. Id. at 61-62.
In Harris, the police arrested the defendant on robbery charges and impounded his
vehicle as evidence. Harris, 390 U.S. at 235. During the course of the routine warrantless
inventory, the officer listing the valuables and tagging the car began to roll up the windows and lock the doors. Id. The officer's motive was to protect the car from an oncoming rainstorm, but he inadvertently discovered a registration card belonging to the robbery victim. Id. Since the officer saw this evidence in plain view, it was legally
admissible. Id. at 235-36. The Court held that the evidence was not a product of a
search. Id. at 236.
33. See Anderson, supra note 3, at 98-99, 101.
34. Cady v. Dombrowski, 413 U.S. 433, 441 (1973). In Cady, the defendant was a
Chicago police officer arrested for drunk driving after an accident disabled his car. Id. at
433, 435-36. Since he was intoxicated and later comatose, the defendant was unable to
arrange for the vehicle's towing and storage. Id. at 436, 443. Therefore, the police towed
his car to a private garage. Id. at 436-37. Since they found no gun on the defendant, the
police reasonably believed that it was still in the trunk of the vehicle. Id. at 436-37, 448.
Because they feared intrusion by vandals who could find and misuse the gun, the police
searched the trunk in order to retrieve it. Id. at 443, 448. The impetus for this "protective search" was public safety and "community caretaking." Id. at 441, 443, 448. The
bloodstained items found in the vehicle's trunk were held admissible as evidence to convict the defendant of murder. Id. at 433, 437-38, 449.
35. 4 Cal. 3d 699, 484 P.2d 84, 94 Cal. Rptr. 412 (1971). In Mozzetti, the police
seized marijuana from within an unlocked suitcase found during the warrantless inventory of an impounded vehicle. Id. at 699, 702-03, 484 P.2d at 84-85, 94 Cal. Rptr. at 41214. The inventory had no probable cause basis and was not incident to arrest. Id. at 71112, 484 P.2d at 92, 94 Cal. Rptr. at 416, 420. The Court defined the inventory as a
"search" subject to the reasonableness requirement of the fourth amendment, even
though the routine procedures were both benign and non-investigatory. Id. at 706, 484
P.2d at 88, 94 Cal. Rptr. at 414, 416. The majority stated that it would be anomalous to
grant fourth amendment protection only to criminal suspects. Id. at 705, 484 P.2d at 87,
94 Cal. Rptr. at 415. Because the inventory involved an extensive and random police
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precedent for inventory searches. According to Mozzetti, the inventory was a narrowly prescribed search 6 subject to an ad hoc
reasonableness test.3 7 Only items in plain view could be seized,38
because the statutory caretaking duty of "slight care" required
that impounded vehicles must only be parked and locked. 9
Mozzetti's logic and plain view limitation was widely followed
by the lower courts before Opperman.0
The Supreme Court finally granted clear constitutional approval to the inventory exception in Opperman.4 1 At this point,
inventory was already a commonplace procedure,42 and a majority of state and federal courts had ruled it to be constitutional.4 3
The Supreme Court's sanction was thus a practical measure
search, it was a substantial invasion of privacy that violated the fourth amendment. Id.
at 705-06, 711, 484 P.2d at 88, 92, 94 Cal. Rptr. at 416, 420. The majority of courts
followed Mozzetti in defining inventory as a "search" under the fourth amendment.
Reamy, supra note 4, at 342 n.81, 343. See also 3 W. LAFAVE, SEARCH AND SEIZURE: A
TREATISE ON THE FOURTH AMENDMENT § 7.4 at 96-98 (2d ed. 1987).
36. Mozzetti, 4 Cal. 3d at 707, 709, 484 P.2d at 89, 94 Cal. Rptr. at 417-18. The
Mozzetti Court ruled that only items "clearly visible" without probing could be inventoried and listed. Id. If these same items were containers such as luggage, they had to be
noted as such and they could not be opened. See id.
37. See supra note 7 for a discussion of the ad hoc reasonableness test.
38. Mozzetti, 4 Cal. 3d at 707, 709, 484 P.2d at 89, 94 Cal. Rptr. at 417-18. See
supra note 25 for an explanation of "plain view."
39. Id. at 707-09, 484 P.2d at 89-90, 94 Cal. Rptr. at 417-18. Under the California
Civil Code, sections 1845 and 1846, involuntary bailees, such as police, need only provide
"slight care for the thing deposited." Id. at 709, 484 P.2d at 90, 94 Cal. Rptr. at 418. See
also 7 CAL. JUR. 2D, BAILMENTS § 31, at 411. They are not liable for ordinary negligence in
handling the property or in protecting its contents. Id. at 709, 484 P.2d at 90, 94 Cal.
Rptr. at 418. Police should merely roll up the windows and lock the car doors to protect
valuables, and visible items such as luggage should be transferred to the car's trunk for
safekeeping. Id. at 707, 484 P.2d at 89, 94 Cal. Rptr. at 417.
40. See Reamy, supra note 4, at 343-44 for a discussion of Mozzetti and the plain
view doctrine.
41. 428 U.S. 364, 369-72, 376 (1976). In Opperman, the police ticketed and finally
towed and impounded an illegally parked car in the owner's absence. Id. at 375. Since
the defendant-owner was unavailable to make other arrangements, the police were responsible for safeguarding his belongings. Id. Although the inventory extended beyond
plain view, it was prompted by some common sense factors. First, the police saw valuables in plain view, including a watch lying on the dashboard and items in the back seat.
Id. at 366. Second, the impoundment lot was insecure and subject to frequent vandalism
due to a makeshift fence and insufficient guard patrols. Id. at 366 n.1. Therefore, it was
reasonable to inspect the unlocked glove compartment in which marijuana was found. Id.
at 376 n.10.
42. See Reamy, supra note 4, at 325 and Anderson, supra note 3, at 97. See supra
note 18 for a listing of ordinary situations where police may inventory vehicles.
43. Opperman, 428 U.S. at 364, 369-72, 376.
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which accepted and buttressed the authority of law enforcement
officials to inventory."' Initially, the Court articulated three
"substantial" government interests,"5 including (1) protection of
the owner's property from theft and loss while in police custody,4 (2) protection of the police against false claims of property theft and loss,' 7 and (3) protection of the police and the
public from dangerous instrumentalities concealed in such property.4 8 Both Justice Marshall and Justice Brennan rejected the
44. Id. See also Anderson, supra note 3, at 105. When the Opperman Court upheld
routine inventories, it was deferring to the judgment of local police departments and
maintaining the status quo. Id. See also Anderson, supra note 3, at 105. The practical
effect was really twofold: first, the Court was able to avoid deciding the constitutional
issue, albeit superficially. Second, police officials benefited by an increase in power. See
id.; see also Anderson, supra note 3, at 105.
45. Opperman, 428 U.S. at 369. The plurality held that these interests outweighed
an individual's privacy interests in his or her vehicle's contents. But see Reamy, supra
note 4, at 325 and 335. Reamy advocates that regardless of purported government interests, the only time inventory is justified is when the owner is incapacitated. Id.
46. Opperman, 428 U.S. at 369. The dissent rebutted this interest and stated that
police should secure the vehicle owner's consent whenever possible. Id. at 392 n.12, 39295 (Justices Marshall, Brennan, and Stewart, dissenting). In Opperman, the owner's
identity was known, yet the police failed to contact him before they searched his car. Id.
at 393-95. Such a failure contradicted the claim that the inventory was conducted for his
benefit, particularly since he did not want his impounded vehicle to be searched at all.
Id. at 392. Similarly, Reamy, supra note 4, at 336-37 confirms the notion that an owner's
desires should be paramount. Reamy suggests that it is irrational for police to assume
that an absent owner requires such protection, especially since he has already chosen to
leave valuables unattended in a locked vehicle. Id. at 335. The loss of such valuables is
also insurable, whereas a violation of privacy is not. Id. at 337 n.58 (quoting Note, Warrantless Searches and Seizures of Automobiles, 87 HARv. L. REV. 835, 853 (1974)).
47. Opperman, 428 U.S. at 369. Justice Marshall exposed the falsity of this interest
by noting that South Dakota state law "absolved the police, as 'gratuitous depositors',
from any obligation beyond inventorying objects in plain view and locking the car." Id.
at 391 (Marshall, J., dissenting). Minimization of false claims is also better served by
sealing car doors and trunks, since an unbroken seal certified that police did not open or
tamper with the vehicle. Id. at 391 n.10. (Marshall, J., dissenting). Justice Powell acknowledged that false claims led to disrespect for law enforcement, thereby impairing
the effectiveness of the police. Id. at 378 (Powell, J., concurring). Inventories, however,
were ineffective to dispel a claim of theft prior to the inventory or of intentional omission from the police records. Id. at 379 (Powell, J., concurring). Furthermore, Reamy,
supra note 4, at 340 notes that this government interest is "stacked" in favor of the
police, since few actual claims are made.
48. Opperman, 428 U.S. at 369. Justice Powell noted that the incidence of danger
in impounding vehicles was, for the most part, rare. Id. at 378 (Powell, J., concurring).
According to Reamy, supra note 4, at 341, this is the least persuasive government interest, since the "threat" is confined safely within the vehicle. Also, assuming the danger is
an explosive, the wiser practice would be to use trained "detector" dogs rather than to
open a potential booby-trap. Id.
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validity of these "transparent" interests."" Even Justice Powell,
who had concurred, discerned some fallacies in the logic of the
government's claims."
The Court's primary justification for inventory was the exercise of routine, administrative "standardized procedures"
guaranteed to prevent subterfuge for exploratory searches. 1 The
Court further held that police were under no obligation to consider less intrusive means.82 Opperman also extended the permissible scope of car inventories from plain view to unlocked
glove compartments,5 3 but the Court did not address the issue of
locked areas or closed containers. 4 Implicit in Opperman, however, was the constitutional limitation of "reasonableness" in the
scope of the search.5
Subsequent to Opperman, the lower courts split on the definition of permissible scope.5 6 One notable dichotomy was the
locked-unlocked debate.5 7 The most significant and hotly con49. See supra notes 46-48 for the opinions of both Justices with respect to each
government interest. In his dissent, Justice Marshall summarized by calling the decision
an elevation of "mere possibilities" of property interests above the privacy and security
interests protected by the fourth amendment. Opperman, 428 U.S. at 395-96 (Marshall,
J., dissenting).
50. See supra notes 47 and 48 for Justice Powell's views.
51. Opperman, 428 U.S. at 364, 369 n.4, 383. This is the logic that permits the
deletion of both probable cause and a warrant. See supra notes 14 and 15 for a more
detailed analysis of this reasoning. The question of whether or not such procedures truly
guarantee against pretextual, investigative motives is debatable. Reamy, supra note 4, at
334. Note also how the logic here conflicts with the holding in Mozzetti, 4 Cal. 3d at 70506, 711, 484 P.2d at 88, 92, 94 Cal. Rptr. at 416, 420.
52. Opperman, 428 U.S. at 394-95. See also Bertine, 107 S. Ct. at 742. The Court
did not require the police to locate and contact vehicle owners in order to secure their
consent or their alternative suggestions. Opperman, 428 U.S. at 394-95. Justice Powell
also noted that the use of security guards could supplant the inventory process, but such
an option was cost prohibitive. Id. at 379 (Powell, J., concurring).
53. Id. at 372, 376 n.10.
54. Bertine, 107 S. Ct. at 741 n.4. However, Justice Powell, concurring in Opperman, indicated that an inventory provided "no general license for the police to examine
all the contents." Opperman, 428 U.S. at 380 (Powell, J., concurring). Similarly, Justice
Marshall, dissenting, stated that it was unrealistic to say that there is no reasonable and
actual expectation of privacy with respect to closed areas within locked cars. Id. at 388
n.6 (Marshall, J., dissenting). He also stressed that the decision did not authorize the
inspection of suitcases, boxes or other containers which might themselves be sealed, removed and secured without further intrusion. Id.
55. Opperman, 428 U.S. at 376 n.10. See supra notes 7 and 8 for an explanation of
the meaning of constitutional "reasonableness."
56. See supra note 3 for a listing of cases and their conflicting interpretations.
57. Opperman sanctioned inventories of unlocked areas only. Opperman, 428 U.S.
1988]
FOURTH AMENDMENT
tested issue, however, was that of closed containers. 58 In an effort to resolve the confusion, some lower courts sought guidance
from related case law pertaining to searches of closed containers
found in a car, but in a probable cause, criminal context."9
The leading probable cause precedents 0 dealt with the conflicting nuances of the auto exception6 and highly protected,
private containers. The decisions evoked strong affirmations in
support of individual privacy rights. 2 The Supreme Court refused to diminish or compromise these rights simply because the
protected container changed locations.6 3 The Court reasoned
at 372, 376 n.10. The question of locked areas was still open. See Reamy, supra note 4, at
344. Compare State v. Miller, 420 A.2d 181 (Del. Super. Ct. 1980) (inventory search of
locked glove compartment held illegal since risk of property loss too remote) with People
v. Godwin, 94 Mich. App. 286, 288 N.W.2d 354-55 (1980) (inventory search of locked
glove compartment upheld since area frequented by vandals, keys were left in ignition
and side window of vehicle was missing) (decision later overruled on different grounds).
58. See Bertine, 107 S. Ct. at 741 nn.3-4. Some courts followed the reasoning of
Justice Marshall in Opperman, 428 U.S. at 388 n.6 (Marshall, J., dissenting). See supra
note 54 for a report of his opinion. See, e.g., People v. Counterman, 192 Colo. 152, 556
P.2d 481-82 (1976) (since nothing indicated that closed knapsack contained valuable or
dangerous items, police should have listed it as such without searching); United States v.
Bloomfield, 594 F.2d 1200 (8th Cir. 1979) (where closed knapsack was tightly sealed and
posed no danger, police should have inventoried it as an unopened unit). But see People
v. Gonzalez, 62 N.Y.2d 386, 465 N.E.2d 823, 477 N.Y. Supp. 2d 103 (1984) (inventory
search of paper bag concealed under dashboard upheld); United States v. Griffin, 729
F.2d 475-76 (7th Cir. 1984) (inventory search of wrapped package found in paper bag
under gun in recessed storage compartment behind passenger seat upheld.)
59. Bertine, 107 S. Ct. at 740-41. The Colorado Supreme Court relied on both
United States v. Chadwick, 433 U.S. 1 (1977) and Arkansas v. Sanders, 442 U.S. 753
(1979) to reach its decision in People v. Bertine, 706 P.2d 411 (Colo. 1985). The United
States Supreme Court reversed this decision in Colorado v. Bertine, 107 S. Ct. 738, 741,
743 (1987).
60. Arkansas v. Sanders, 442 U.S. 753 (1979); United States v. Chadwick, 433 U.S.
1 (1977). In Chadwick, officers seized a double-locked footlocker from the trunk of a car.
Id. at 4. Ninety minutes later, when the defendant was in custody, they searched it without a warrant. Id. at 4, 15. Even though the officers had probable cause to believe the
footlocker contained contraband, the Court held that the warrantless search was illegal.
Id. at 4, 5, 7, 11, 15. Although the car was mobile, the footlocker was stationary, so the
auto exception did not apply. Id. at 5-6, 13. Exigency and search incident to arrest were
also inapplicable. Id. at 6. 11, 15.
In Sanders, the police had probable cause to believe that the defendant's suitcase
contained contraband. Id. at 755. They watched the defendant as he placed the case in
the trunk of a taxi and drove off. Id. The police then stopped the taxi, seized the suitcase
and conducted a warrantless search on it. Id. The Court held that the search was illegal
because the suitcase was non-mobile and no exigency existed. Id. at 762-64, 766.
61. See supra note 27 for a discussion of the auto exception.
62. See supra note 60 for the facts and holdings of these cases.
63. Sanders, 442 U.S. at 766. According to Sanders, a warrantless search cannot be
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that cars and containers were separate, not analogous entities,
and containers commanded a much greater expectation of privacy." Unfortunately, this progressive approach was overshadowed by a recent ruling that gave less weight to individual privacy rights.6 5 The legal relevance of these container cases also
must be viewed somewhat apprehensively. Since these cases pertain to probable cause investigation, their influence is persuasive, not binding on inventory decisions. The invocation of any
one of these cases is discretional, and the Court may choose a
certain precedent in order to achieve a particular result.6 The
cases are invaluable tools for charting judicial trends, because
they indicate the unfaltering direction of the present Court. 7
justified merely because the subject of the search is placed in an automobile. Id.
64. Chadwick, 433 U.S. at 13.
65. United States v. Ross, 456 U.S. 798 (1982). In Ross, the police had probable
cause to believe that narcotics would be found in the trunk of a car. Id. at 798, 800. The
Court held that the warrantless search of a closed paper bag and a zippered pouch found
in the trunk was permissible. Id. at 798, 800-801. Since they had probable cause to
search the car, the police could search every part of the car, including all containers
found therein. Id. at 798-800, 817, 823-25. The Court extended the scope of the search to
containers for "practical" reasons, noting that the object of the search and not the nature of the containers was paramount. Id. at 798-99, 820, 821 n.28, 824. The Court explained that when a legitimate search is under way, with the purpose and limits defined,
distinctions between glove compartments, upholstered seats, trunks and wrapped packages "must give way to the prompt, efficient completion of the task at hand." Id. at 821.
The Ross Court also refused to distinguish between "worthy" and "unworthy" containers, where the former would have a protected expectation of privacy (the zippered
pouch) and the latter would not (the paper bag). Id. at 822, 822 n.30. This distinction
would be an unreasonable burden on the police, and the fourth amendment disallows
categorizing. Id. at 802 (quoting the lower court decision). Ross thus limited and partially overruled Sanders. Ross, 456 U.S. at 824. Common sense dictates that if there is
probable cause to search a container, there will be probable cause to search the car once
the container enters it, and Ross would then sanction a warrantless search of the car,
including the container. The general reasoning of Ross was inconsistent with Sanders.
The Ross Court attached no real significance to privacy interests in closed containers.
Ross, 456 U.S. at 823-24. Justice Marshall and Justice Brennan dissented in Ross, stating
that the majority was repealing the fourth amendment warrant requirement. Id. at 827
(Marshall and Brennan, JJ., dissenting).
66. E.g., Bertine, 107 S. Ct. at 741, 743. The Bertine Court rejected the application
of both Chadwick and Sanders, because of their probable cause, investigatory context.
Bertine, 107 S. Ct. at 741. However, the Court did apply Ross (probable cause investigation) and Belton (auto search incident to arrest) to buttress the administrative convenience justification for a warrantless car inventory search of a closed backpack. Bertine,
107 S. Ct. at 743.
67. United States v. Johns, 105 S. Ct. 881 (1985), further expanded the holding in
Ross. The Court ruled that a warrantless search of packages removed from trunks which
police seized three days earlier was legal, even though the search was not contemporane-
19881
FOURTH AMENDMENT
The Court finally returned to the issue of closed containers
found during inventory searches in Illinois v. Lafayette." The
context, however, was entirely different.6 9 Since the inventory of
the defendant's shoulderbag occurred at the station house prior
to incarceration, no vehicle was involved.7 0 The holding was extremely fact specific and limited in scope.7 1 Therefore, the permissible scope of an automobile inventory search remained undelineated. 2 The Lafayette Court also recognized the same
three government interests as it did in Opperman,7' but the
need for protection from danger was stronger and more convincing in Lafayette.7 4 Even Justices Marshall and Brennan conceded to the logic of the argument.7 6 Again, the Court held that
police officials need not employ less intrusive means, because
they had the unconditional right to search every container.76
The Court refused to set stricter constitutional guidelines that
ous with the seizure. Id. See also Anderson, supra note 3, at 96, 114.
68. 462 U.S. 640 (1983). In Lafayette, the police arrested the defendant for disturbing the peace and brought him to the station house for booking and jailing. Id. at
641-42.
69. Id. Lafayette was a station house inventory, while Opperman was a car
inventory.
70. Id.
71. See Bertine, 107 S. Ct. at 748-49 (Marshall and Brennan, JJ., dissenting). The
Court in Lafayette noted that whether or not the defendant was to be incarcerated after
booking was an "appropriate inquiry on remand." LaFayette, 462 U.S. at 648 n.3. Apparently, then, the unique jailing context was dispositive to the holding. Bertine, 107 S. Ct.
at 748 (Marshall and Brennan, JJ., dissenting).
72. Lafayette related to station house inventories, not car inventories. The only
relevant car inventory case was Opperman, which did not officially define the permissible
scope beyond unlocked glove compartments. Opperman, 428 U.S. at 372, 376 n.10 and
Bertine, 107 S. Ct. at 741 n.4.
73. Lafayette, 462 U.S. at 646. See supra notes 45-48 and accompanying text for a
description of each government interest. The Court also mentions a fourth interest: to
ascertain and to verify the arrestee's identity. Lafayette, 462 U.S. at 646.
74. Id. at 645-46. The government has a compelling interest to prevent the introduction of contraband and dangerous instrumentalities into the jail house environment.
Id. The exigencies and pressing security concerns of this context demand that station
house searches be more intrusive than searches in the field. Id. Inmates can injure themselves and others with explosives or weapons concealed in innocent-looking items. Id. at
646.
75. Id. at 649 (Marshall and Brennan, JJ., concurring).
76. Id. at 646-48. The police need not subjectively fear a container in order to
search it. Id. at 646. Also, the police are not required to inventory containers as a sealed
unit, since it would be unreasonable to expect them to routinely make "fine and subtle
distinctions in deciding which containers or items may be searched and which must be
sealed as a unit." Id. at 648.
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might interfere with station house policies." Instead, the Court
abdicated and deferred to the "reasonableness" of routine police
department procedures. 8
III.
A.
THE DECISION
The Facts
On February 10, 1984, a police officer in Boulder, Colorado,
arrested Bertine for driving while under the influence of alcohol.7 9 After taking Bertine into custody, the arresting officer
asked the back-up officer to impound Bertine's van.80 Pursuant
to subsection 7-7-2(a)(4) of the Boulder Revised Code, the officers were authorized to impound vehicles when the driver was
taken into custody."' Before the tow truck arrived, the back-up
officer conducted a detailed inventory of the contents of the van
in accordance with standard Boulder police procedures.' The
officer opened a closed backpack which he found in plain view
directly behind the front seat. 3 Inside the pack, the officer
found a zippered nylon bag containing metal canisters.8 4 Open77. Id. at 647-48.
78. Id. "Reasonableness" is something of an anomaly in that no true reasonableness test takes place. Instead of balancing to determine reasonableness, the Court
presumes that police policies are reasonable. Id. The Court rationalized its action and
stated:
[I]t is not our function to write a manual on administering routine, neutral
procedures of the station house. Our role is to assure against violations of the
Constitution. . . . We are hardly in a position to second-guess police departments as to what practical administrative method will best deter theft by and
false claims against its employees and preserve the security of the station
house.
Id. at 647-48. Apart from the gains in administrative convenience, the result of deferring
to local police puts the constitutional issue squarely in their hands. See Note, supra note
9, at 218, 235.
79. Colorado v. Bertine, 107 S. Ct. 738-39 (1987).
80. People v. Bertine, 706 P.2d 411-12 (Colo. 1985).
81. Id. at 412. Section 7-7-2(a)(4) provides: "A peace officer is authorized to remove
or cause to be removed a vehicle from any street, parking lot or driveway when: (4) the
driver of a vehicle is taken into custody by the police department.
Boulder Rev.
Code Section 7-7-2(a)(4) (1981).
82. People v. Bertine, 706 P.2d at 413 & n.2 (1985). Although the inventory procedure followed was officially authorized, the officer also had two other options: (1) to seal
the vehicle's doors and windows shut before towing, or (2) to drive the vehicle to the
nearest lot and then to park and lock it. Id. at 413 n.2.
83. Colorado v. Bertine, 107 S. Ct. at 739-40.
84. Id.
1988]
FOURTH AMENDMENT
ing these canisters, the officer discovered cocaine, methaqualone
tablets and $700 in cash."0
Before Bertine's trial for alleged drug offenses, the state
trial court granted his motion to suppress the evidence.8 6 The
trial court held that the police officers impounded and inventoried the van in good faith and in accordance with standard procedures.8 7 Relying on Illinois v. Lafayette, 8 the trial court ruled
that the search was reasonable under the Fourth Amendment to
the United States Constitution. 9 But, because of People v.
0 the trial court also held that the search violated
Counterman,"
article II, section 7 of the Colorado Constitution.9"
On the state's interlocutory appeal, the Colorado Supreme
Court affirmed, but premised its ruling on the Fourth Amendment to the United States Constitution.2 The Colorado Supreme Court relied on United States v. Chadwick's and Arkansas v. Sanders" when it held that the search was unreasonable. 5
The Colorado Supreme Court emphasized that the impoundment facilities were secure, the defendant was available to make
alternative arrangements, and the circumstances were not exi85. Id.
86. Id.
87. Id. The trial court also noted that the officer performed the inventory in a
"somewhat slipshod" manner, because he failed to list numerous items of value, including credit cards and extra cash. Id. at 740, 747.
88. 462 U.S. 640 (1983). For a review of Lafayette, see supra notes 68-78 and accompanying text.
89. People v. Bertine, 706 P.2d at 413-14.
90. 192 Colo. 152, 556 P.2d 481 (1976). For a synopsis of Counterman, see supra
note 58.
91. People v. Bertine, 706 P.2d at 414. Article II, section 7 of the Colorado Constitution is substantially equivalent to the Fourth Amendment to the United States Constitution and provides:
The people shall be secure in their persons, papers, homes and effects, from
unreasonable searches and seizures; and no warrant to search any place or seize
any person or things shall issue without describing the place to be searched, or
the person or thing to be seized, as near as may be, nor without probable cause,
supported by oath or affirmation reduced to writing.
COLO. CONST. art. II, section 7.
92. People v. Bertine, 706 P.2d at 419. See also Colorado v. Bertine, 107 S.Ct. at
740.
93. 433 U.S. 1 (1977). See supra note 60 for details of the case.
94. 442 U.S. 753 (1979). See supra note 60 for case synopsis.
95. People v. Bertine, 706 P.2d at 419. See also Colorado v. Bertine, 107 S. Ct. at
740, 741.
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gent.9 6 Since the search violated the United States Constitution,
the Colorado Supreme Court did not need to decide whether the
Colorado Constitution provided greater protection to Colorado
citizens than the United States Constitution in the area of automobile inventory searches.9 7
Ultimately, the United States Supreme Court granted certiorari. The key consideration was the recurring constitutional
issue of whether the police may inventory the contents of containers found in vehicles taken into police custody. 8
B.
The Opinion
In a 7-2 decision, the United States Supreme Court reversed
the ruling of the Colorado Supreme Court and held that the automobile inventory search did not violate the Fourth Amendment to the United States Constitution." The Court then ruled
that the permissible scope of a routine car inventory search
could extend to closed containers. 10 0 Therefore, the evidence was
admissible to prove criminal charges against Bertine.'0 '
The majority"' distinguished both Chadwick and Sanders,
noting that these cases pertained only to probable cause, investigatory searches. 0 3 Instead, the Court utilized Lafayette to expand the automobile inventory exception acknowledged in Opperman.04 The Court then reiterated the "strong governmental
interests" expounded in both Opperman and Lafayette.0 5 Because Bertine made no showing of police "bad faith,"' 10 the ma96. People v. Bertine, 706 P.2d at 412, 417-18. The impoundment lot was locked,
lighted and entirely enclosed by a six-foot fence. Id. at 417. The lot was routinely patrolled by police and security officers, and nothing had ever been stolen from vehicles
previously stored there. Id. The metal canisters also gave little indication that their contents contained valuables or dangerous instrumentalities. Id. at 418.
97. Id. at 419.
98. Colorado v. Bertine, 107 S. Ct. at 741.
99. Id. at 739, 741-43.
100. Id. at 739, 743-44.
101. Id. at 739, 743.
102. Id. at 739. Chief Justice Rehnquist delivered the option of the Court, in which
Justices White, Blackmun, Powell, Stevens, O'Connor and Scalia joined.
103. Id. at 741.
104. Id. at 741-43.
105. Id. at 741-42.
106. Id. at 739, 743. The burden of proof was on Bertine to rebut the presumption
of police "good faith." Id. The Court did not challenge the police or require them to
defend the inventory. Id. at 739, 742-43. Rather, the Court accepted the search as stan-
1988]
FOURTH AMENDMENT
jority presumed that the inventory was reasonable and deferred
to the routine "standardized procedures" of the Boulder Police
Department."' Even though the officer's decision to inventory
was discretionary,' 0 8 the Court upheld it since the actual inventory procedure was non-discretionary." 9 The majority did not
address or weigh Bertine's privacy interests, 110 but instead fashioned a broad per se rule for "uniform guidance.""' Three of the
justices wrote separate concurrences to emphasize the importance of mandatory, standard procedures for the police to
follow. 1 2
Both Justice Marshall and Justice Brennan dissented. 1' 3
They viewed the inventory search as too intrusive and unreasonable.1 14 Since the police had "unbridled discretion as to which
15
procedure to use," the search violated the fourth amendment.
Justice Marshall noted that the police had two other options besides inventory. Both of these options explicitly prohibited the
opening of closed containers.1 ' He argued that under the facts,
dard, non-investigatory, and benign. Id.
107. Id. at 739, 742-43.
108. Id. at 739, 743, 745-46. The backup officer who impounded the vehicle testified that the decision to inventory was his own choice. Id. at 745. The Boulder Police
Department Rules did not require such procedures. People v. Bertine, 706 P.2d at 411,
413 n.3 (Colo. 1985). The record indicated that three options existed, including (1) releasing custody of the car to a third party without searching it, (2) parking and locking
the car in a public lot without searching closed containers therein, unless they appeared
to hold valuables or weapons, and (3) impounding a car and conducting a detailed inventory of all items, including the contents of closed containers. Colorado v. Bertine, 107 S.
Ct. at 745-46. The backpack could only be searched under the third option. Id. at 746.
109. Bertine, 107 S. Ct. at 739, 743. Once the officer chose to inventory, the procedure itself was standard and enumerated. Id.
110. Id. at 739, 743.
111. Id. at 743. The Court emphasized that a "single familiar standard" was essential to guide police officers, who had only limited time and expertise to balance the social
and individual interests involved. Id. The new per se rule thus simplified the inventory
by allowing the police to search all closed containers without balancing any interests. Id.
Before Bertine, police searched closed containers only upon a reasonable belief that the
containers housed dangerous or valuable items. Id.
112. Id. at 744. Justices Blackmun, Powell and O'Connor equated "standardized
police procedures" with "absence of discretion," which ensured that inventory searches
would not be used as a pretext for a warrantless investigative foray. Id.
113. Id. at 744-750 (Marshall and Brennan, JJ., dissenting).
114. Id. at 744, 746, 748-49 (Marshall and Brennan, JJ., dissenting).
115. Id. at 746 (Marshall and Brennan, JJ., dissenting). See supra note 108 for the
facts that indicate the presence of police discretion.
116. Id. at 745-46 (Marshall and Brennan, JJ., dissenting). See supra note 108 for a
listing of these options.
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the "park and lock" option was the most feasible, 1 7 and the permissible scope of the "detailed" inventory was not standardized,
but left to the whim of the individual police officer. " ' This discretionary element, in addition to the "slipshod" nature of the
inventory, made the search subject to a "grave danger of
abuse."' 1 9 Justice Marshall also disagreed with the majority's
"bad faith" standard of proof. 120 He admonished the Court for
misapplying the limited holdings of Opperman and Lafayette
and for ignoring the relevance of Chadwick and Sanders.2 ' In
1 22
rebutting the government interests preferred by the majority,
117. Id. at 745 (Marshall and Brennan, JJ., dissenting). Justice Marshall stated
that parking and locking the vehicle would have been more appropriate because (1) there
was ample public parking adjacent to the intersection where Bertine was stopped, and
(2) since Bertine was arrested on a traffic offense, he was unlikely to be in custody for
more than a few hours, so his vehicle required little or no protection. Id.
118. Id. at 746 (Marshall and Brennan, JJ., dissenting). The prescribed car inventory did not clarify which areas to search or what sort of items to inventory. Id. The
arresting officer testified that such decisions were individualistic and based on "whatever
arouses one's suspicions." Id.
119. Id. at 745-47 (Marshall and Brennan, JJ., dissenting). Justice Marshall noted
that the trial court's characterization of the inventory as "slipshod" was the height of
understatement. Id. at 747 (Marshall and Brennan, JJ., dissenting). The police failed to
list numerous valuable items, including cash, credit cards, a converter, a hydraulic jack,
and a set of tire chains. Id. The interior of the vehicle was left in disarray, and the officer
"inadvertently" retained Bertine's house keys for two days following his arrest. Id.
120. Id. at 746 (Marshall and Brennan, JJ., dissenting). Because the search allowed
the police unfettered discretion, no proof of actual "bad faith" was needed to invalidate
the inventory. Id. Similarly, Justice Marshall said that it was not necessary to establish
that the inventory was in fact a pretext. Id. The possible danger of abuse of discretion
was enough to render Boulder's inventory scheme unreasonable. Id.
121. Id. at 744, 748-49. Unlike Opperman and Lafayette, the inventory in Bertine
was not conducted according to standardized procedures. Id. at 744. The government
interests justifying the intrusion were also much weaker in Bertine, and the individual
expectation of privacy was considerably stronger. Id. Justice Marshall noted that the car
owner in Opperman was absent, whereas Bertine was present to grant consent to the
inventory or to make alternative arrangements for the safekeeping of his belongings. Id.
at 748 (Marshall and Brennan, JJ., dissenting). The police, however, made no attempt to
consult Bertine, even though he was in custody only briefly and preferred to leave his
valuables unattended in the locked vehicle. Id. In Lafayette, the inventory was justified
by compelling government interests unique to the station house. Id. at 748-49 (Marshall
and Brennan, JJ., dissenting). These pressing security concerns were entirely absent in
Bertine, so the majority's reliance on Lafayette was fundamentally misplaced. Id. Both
Chadwick and Sanders established that Bertine had a reasonable expectation of privacy
with respect to his backpack and its contents. Id. at 749 (Marshall and Brennan, JJ.,
dissenting). The majority completely ignored this privacy interest, which substantially
outweighed the weaker government interests. Id.
122. Id. at 747-48 (Marshall and Brennan, JJ., dissenting). See supra notes 46-48
for an explanation of each government interest. Justice Marshall noted that the "protec-
1988]
FOURTH AMENDMENT
Justice Marshall stressed that the preservation of property could
never outweigh the privacy and security interests of the fourth
amendment. 2 3 He claimed that the majority had exalted weak
government interests and erred by completely ignoring Bertine's
strong expectation of privacy with respect to his backpack.'"
IV.
ANALYSIS
The majority in Bertine characterized the decision as a "reaffirmation" of former principles, which suggested a mere extension of settled precedent.'2 5 The real problem arises in determining which precedent is the appropriate one to follow.' 6 In
reality, no one authority is truly more applicable than the next,
because the issues of "closed container," "automobile" and "inventory" suggest multiple, overlapping and often conflicting
lines of cases.' 7 In the final analysis, however, the common denominator must always be the Fourth Amendment to the United
tion against claims" interest was inapposite to Bertine, because the "slipshod" nature of
the inventory encouraged rather than prevented the owner from lodging claims of property theft or loss. Id. Also, the use of secure impoundment facilities eliminated this concern. Id. In Bertine the impoundment lot was patrolled by security officers, locked, welllighted and surrounded by a six-foot fence. Id. at 747 n.6 (Marshall and Brennan, JJ.,
dissenting). The "protection from danger" interest was also too attenuated. Id. at 747
(Marshall and Brennan, JJ., dissenting). Since Bertine was arrested on a traffic offense,
he was unlikely to be harboring weapons or explosives. Id. at 748 (Marshall and Brennan, JJ., dissenting). Even if the police had suspected a "booby-trap," it would have
been too risky and illogical to search the contents of his backpack for it. Id. The "protection of property" interest was not served, because Bertine was available and the police
failed to seek his consent to the "safeguarding" procedures. Id.
123. Id. at 748 (Marshall and Brennan, JJ., dissenting).
124. Id. at 746-49 (Marshall and Brennan, JJ., dissenting).
125. Id. at 743. The emphasis was on a "single familiar standard" for police guidance, derived from Lafayette, 462 U.S. at 648, and Belton, 453 U.S. at 454. Lafayette
dealt with station house inventories, and Belton pertained to car searches incident to
custodial arrests.
126. The majority relied on Opperman, Lafayette, Ross and Belton, Bertine. 107
S. Ct. at 739, 743. See supra notes 10, 41, 65, 68 and accompanying text for case summaries. The dissent supported the Colorado Supreme Court, which relied on Chadwick and
Sanders. Id. at 749 (Marshall and Brennan, JJ., dissenting).
127. •See id. at 739-41, 743, 749 for a discussion of cases concerning the various
issues. No one case contains all three issues together. The precedents listed supra note
126 can be categorized as followed: (1) Opperman (automobile and inventory), (2) Lafayette (inventory and closed container), (3) Ross (automobile and closed container), (4)
Belton (automobile), (5) Chadwick (automobile and closed container), and (6) Sanders
(automobile and closed container). The conflicting results in these cases are exacerbated
by the presence of extraneous facts and novel contexts. See, e.g., Lafayette, supra note
125 (station house) and Ross, supra note 65 (probable cause).
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States Constitution.
The facts of Bertine illustrate that the inventory search was
not conducted according to genuine, non-discretionary, standard
procedures.1 18 To the contrary, the evidence is highly suspicious
and suggests that a pretextual, investigative motive existed.129
Unfortunately, the state trial court's factual ruling of "good
faith" was not subject to review by the Colorado Supreme Court.
Similarly, the United States Supreme Court did not address the
issue, since Bertine made "no showing of police bad faith."'1' 3
However, the fourth amendment requires no such "showing." 1
Rather, it mandates only that a search be "reasonable. 1 ' 32 Of the
many factors contributing to a reasonable inventory search, the
most crucial is the absence of discretion. s Without this element, the rationale of inventory fails, so any hint of discretion
should taint the legality of the search.134 Justice Marshall viewed
the inventory search in Bertine as permeated with discretion
and, therefore, illegal.'3 5
The burden of proof as to reasonableness usually falls on
the party searching, instead of the individual who is subjected to
128. Bertine, 107 S.Ct. at 739, 743. See supra notes 108 and 118 for a review of the
facts.
129. Id. at 739, 743.
130. Id. at 743. Bertine failed to meet his burden of proof. Id. See supra note 106
for an analysis of this burden.
131. Id. at 746 (Marshall and Brennan, JJ., dissenting). In his dissent, Justice Marshall stated that no proof of actual "bad faith" was needed to invalidate the inventory.
Id. The inventory violated the fourth amendment because it was too discretionary. Id.
132. Id. See supra notes 7 and 8 for an explanation of "reasonableness" and the
text of the fourth amendment.
133. Id. at 746 (Marshall and Brennan, JJ., dissenting). See also Opperman, 428
U.S. 364, 376, 383 (1976).
134. Bertine, 107 S.Ct. at 746 (Marshall and Brennan, JJ., dissenting). See Reamy,
supra note 4, at 334 for the same proposition. See also 2 W. LAFAVE, SEARCH AND
SEizuRi: A TREATISE ON THE FOURTH AMENDMENT § 5.5(b) at 542 (2d ed. 1987). Professor
LaFave suggests that discretion may be shown by evidence indicating pretextual motives
on the part of police. See id. An example would be where police scrutinize only suspicious items and do not remove or inventory other contents. Id. In such an instance, the
evidence must be suppressed. Id. Despite the trial court's finding that no pretext was
present, and the state court's rule of nonreviewability of such rulings against the defendant on interlocutory appeal, the United States Supreme Court should have been reluctant to formulate standards of national impact on such an equivocal and "slipshod" inventory. Brief for Respondent at 18-19, Colorado v. Bertine, 107 S. Ct. 738 (1987). See
supra note 119 for the facts showing the "slip-shod" nature of the inventory.
135. Bertine, 107 S. Ct. at 745-46 (Marshall and Brennan, JJ., dissenting).
1988]
FOURTH AMENDMENT
the search. " 6 The shifting of this burden to Bertine thus gave
the police a key advantage, because it immunized them from ordinary challenges."3 " The result seems unfair, since "bad faith"
is somewhat abstract, elusive and difficult to prove.
The majority buttressed its decision by expounding the
merits of numerous "substantial" government interests. " In
Bertine, these interests were minimal and arguably pretextual.5 9
In reality, they were simply the means for establishing a correlation between Bertine, Lafayette and Opperman. Justice Marshall cleared this smokescreen by noting that both Lafayette
and Opperman were inapposite to Bertine." In Lafayette, the
government had a compelling interest that outweighed the defendant's privacy interest."' In Opperman, the government interests were arguably justifiable in light of the defendant's diminished privacy interests."
In Bertine, however, the
government interests were neither compelling nor justifiable,
and the defendant's privacy interests were strong rather than diminished." 8 Similarly, Opperman did not relate to closed con136. People v. Berrios, 28 N.Y.2d 361, 321 N.Y.S.2d 884, 270 N.E.2d 709 (1971)
(burden to prove lawfulness of warrantless search and seizure should be on the prosecution in all narcotics cases) (Fuld, C.J., dissenting). See also W. LAFAvE and J. ISRAEL,
CRIMINAL PROCEDURE 458-59 (abr. ed. 1985). According to LaFave, the federal courts
place the burden of proof on the prosecution when the police act without a warrant. Id.
at 459. If the search or seizure was pursuant to a warrant, the defendant has the burden
of proof. Id. Some jurisdictions uniformly place the burden on the prosecution, because
the state is the party which seeks to use the evidence and should prove that it was lawfully obtained. Id.
137. W. LAFAVE and J. ISRAEL, supra note 136, at 458-59. LaFave notes that placing
the burden upon the defendant in a no warrant situation puts him in a difficult, if not
impossible position, since he is not privy to the relevant facts which he must disprove.
Id. at 459. Since the police conducted the inventory, they had better access to the proof
of "good faith" than did Bertine.
138. Bertine, 107 S. Ct. at 742.
139. Id. at 747-48 (Marshall and Brennan, JJ., dissenting). See supra note 122 for
an analysis of these weak government interests.
140. Id. at 744, 748-49 (Marshall and Brennan, JJ., dissenting).
141. Id. at 748-49 (Marshall and Brennan, JJ., dissenting).
142. Id. at 748 (Marshall and Brennan, JJ., dissenting). In his dissent, Justice Marshall noted that Opperman's privacy interests were diminished because he was not available to safeguard his possessions, and the police were entitled to act for his presumed
benefit. Id. In Opperman, the police were unable to predict how long the car would be
left in their custody. Opperman, 428 U.S. at 379. The possibility of a lengthy custody
justified police caretaking procedures. Id. Similarly, the search in Opperman was only
minimally intrusive, since it involved an unlocked glove compartment rather than a private, closed container. Id. at 380 & n.7.
143. Bertine, 107 S. Ct. at 744, 747-49 (Marshall and Brennan, JJ., dissenting). See
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tainers, and Lafayette had nothing to do with automobiles.
Therefore, both cases appear distinguishable and other case law
is equally, if not more, relevant.14
Both United States v. Chadwick and Arkansas v. Sanders
dealt with the issue of closed containers and automobiles. Although they were not inventory search cases, they should have
been considered in the majority's analysis. Justice Marshall recognized the value of these cases, and he chided the majority for
dismissing them so quickly.'" Both cases recognized that closed
containers were highly private and should be protected. By rejecting both cases, the majority also rejected these legitimate individual privacy interests. Justice Marshall accurately stated
that the majority simply ignored Bertine's expectation of privacy regarding his backpack."'
Similarly, the majority evaded the issue of individual privacy interests by establishing a per se rule of a "single familiar
standard" for police guidance." 7 In effect, the Court abrogated
the balancing test, because it made a decision to withdraw from
weighing competing interests. " " Unfortunately, this elimination
of the ad hoc "reasonableness" test is abhorrent to fourth
amendment law, because it provides no protection and renders
the constitutional guarantee meaningless. As one critic noted:
The subversion of the well-established balance test in favor of a per se
rule is a novel approach to judicial activism which turns the fourth
amendment analysis on its head ....
Far from insuring the reasonableness of governmental intrusions into legitimately personal effects,
this establishes a per se rule of unreasonableness.' 9
Justice Marshall's reliance on a balancing analysis was the more
sound approach.
supra notes 121 and 122 for an analysis of the government interests vis-a-vis Bertine's
privacy interests.
144. Id. Marshall considered Chadwick and Sanders to be more applicable to Bertine. Id. See supra note 60 for a review of these cases.
145. Id. at 749 (Marshall and Brennan, JJ., dissenting).
146. Id.
147. Id. at 743. See supra notes 7 and 9 for a discussion of this per se rule.
148. Id. See supra note 7 for a review of the balancing test.
149. Brief of Amici Curiae for Respondent by the Colorado Criminal Defense Bar,
Inc. and the National Association of Criminal Defense Lawyers at 3, Colorado v. Bertine,
107 S. Ct. 738 (1987).
1988]
FOURTH AMENDMENT
V.
ALTERNATIVES
Inventory is not the only solution for safeguarding towed
and impounded vehicles. Numerous viable alternatives exist. For
example, the car owner, accompanied by a police escort, can simply move the automobile to a legal and safe parking spot. 150 The
owner may also release his car to the custody of a trustworthy
third party. 15 ' In both these instances the responsibility for the
vehicle and its contents remains with the owner. Such procedures are attractive since they conveniently relieve the police of
any liability or burden associated with the direct custody of the
automobile.1 52 Inventory is entirely unnecessary. 1 3
Similarly, the police officer can simply park and lock the vehicle in either an impoundment lot or other safe, available, public parking area. 5 4 The police can further protect the vehicle
against unwanted intrusions by sealing the trunk and doors
shut.'5 5 Still another option for police agencies is to improve the
security of their own impoundment facilities. Fences, alarms and
watchdogs are relatively cheap solutions in lieu of more costly
security guard services.156 In any event, the extra security expenses incurred by police agencies can be recouped by charging
57
impoundment fees.1
150. See Reamy, supra note 4, at 330-32 for a discussion of various alternatives.
151. Bertine, 107 S. Ct. at 745 (Marshall and Brennan, JJ., dissenting). See also
Reamy, supra note 4, at 330-32. Reamy identifies possible third parties as friends, relatives, or fellow passengers whom the car owner may designate to assume responsibility
for his vehicle. Id. at 330. However, these individuals must be legally, physically, and
mentally competent to drive. Id. LaFave further indicates that an arrestee should be
afforded a reasonable opportunity at the time of booking to arrange for a friend to pick
up the car. 3 W. LAFAvE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT §
7.3(c) at 92 (2d ed. 1987).
152. See 3 W. LAFAVE, supra note 151, § 7.3(c) at 92.
153. Reamy, supra note 4, at 332-33. Reamy notes that inventory should never be
accepted lightly unless legitimate government interests clearly outweigh the interests of
the individual in preserving his privacy. Id. at 333.
154. Bertine, 107 S. Ct. at 745 & n.3 (Marshall and Brennan, JJ., dissenting). See
also 3 W. LAFAVE, supra note 151, § 7.3(c) at 89-92. LaFave states that if the driver asks
that his car be left at the scene, and circumstances are such that it can be lawfully
parked in the vicinity, then his wishes should be respected. Id. at 92.
155. People v. Bertine, 706 P.2d 411, 413 (Colo. 1985) and Opperman, 428 U.S. at
391 n.10. See also Reamy, supra note 4, at 339.
156. Reamy, supra note 4, at 338. See also 3 W. LAFAVE, supra note 151, § 7.4(a) at
105. LaFave indicates that when a jurisdiction does have adequate security for its storage
facilities, there is no point in inventorying at all. Id.
157. See Reamy, supra note 4, at 338 for a confirmation of this view.
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Any harmless containers inside vehicles may be left undisturbed" 8 or brought to the station house. Unless the owner consents to or requests that they be opened, the containers can be
easily sealed, stored and inventoried as a unit.'59 Opening and
inspecting a container which does not appear to hold any dangerous or valuable items can be time-consuming and unnecessary.6 0 When the actual time span for the custody of the
owner's property is brief, as where a minor traffic offender
quickly posts bail, the need for a detailed inventory search
seems particularly superfluous.' 6 '
To rare circumstances, when inventory is the only rational
solution, compromises can still be made. Where police genuinely
perceive danger that cannot be ferreted out by the use of trained
dogs or mechanical devices, the police may risk the "boobytrap" and justifiably search.' 62 The use of any found evidence,
however, can be suppressed in exchange for the license to conduct an intrusive, "protective" search. Unfortunately, the Supreme Court would probably reject such a "bargain" option,
since it is already ambivalent with respect to the Exclusionary
Rule. 1'
A final future option would be to codify the inventory under
64
more precise guidelines set by an elected body or legislature.
The notion of such regulation implies greater objectivity and a
fairer balancing of competing interests.'6 5 At least the "routine
procedures" would be reviewed by some individuals outside of
regular police personnel.
158. Reamy, supra note 4, at 341. According to Reamy, even if a vehicle does contain a knife, gun or other weapon, it is inconceivable that these weapons, secured in the
vehicle, could pose a threat to the police or the public. Id. Similarly, LaFive notes that
this protection of the public argument "borders on the ridiculous." 3 W. LAFAVE, supra
note 151, § 7.4(a) at 105.
159. Opperman, 428 U.S. at 388 n.6 (Marshall, J., dissenting) and People v. Counterman, 192 Colo. 158, 556 P.2d 485 (1976).
160.
See Counterman, 192 Colo. at 158, 556 P.2d at 485.
Bertine, 107 S. Ct. at 745 (Marshall and Brennan, JJ., dissenting). See also 3
W. LAFAvE, supra note 151, § 7.3(c) at 87-88 and § 7.4(a) at 106-07.
161.
162.
163.
164.
Opperman, 428 U.S. at 378 (Powell, J., concurring).
Note, supra note 9, at 235.
Id. at 234.
165.
Id.
1988]
FOURTH AMENDMENT
VI.
CONCLUSION
By ignoring Bertine's privacy interest, the United States
Supreme Court subordinated his constitutional rights to the
whims of police officers wielding insubstantial "government interests.""16 This result seems anomalous when one considers that
analogous administrative searches often require warrants and
usually employ a balancing analysis.8 17 Similarly, a suspected
criminal normally receives greater protection in the form of a
probable cause warrant. A mere traffic violator or "drunk driver"
certainly deserves at least equal protection of his privacy rights.
Regardless of professed non-discretionary procedures, the motorist must still face criminal charges and sanctions if the police
discover contraband anywhere in his vehicle or the containers
therein.'6 8
The only genuine rationale for a per se rule seems to be administrative convenience. The Court emphasizes that police
agencies need clear guidance from a "single familiar standard." 8 The Court also implies that police are incapable of
making ad hoc judgments pertaining to vehicle-container inventories. 70 Such a belief, however, is untenable.17 1 Police make
similarly difficult decisions every day. 7 2 Even assuming the benefits of administrative convenience, the rule cannot be justified
since:
[U]nconstitutional searches cannot be constitutionalized by standardizing them as a part of normal police practice. Even though routine
procedures have been followed, courts should not blind themselves to
police practices that sanction an unlimited intrusion into areas where
166. Bertine, 107 S. Ct. at 744, 747-49 (Marshall and Brennan, JJ., dissenting).
167. See Camara v. Municipal Court, 387 U.S. 523 (1967) (housing inspections require warrants or reasonableness as determined by the balancing test).
168. Bertine, 107 S. Ct. at 739. Evidence of contraband is admissible and cannot be
suppressed when the inventory is held to be lawful. Id.
169. Id. at 743. See supra note 9 for a discussion of the per se rule.
170. Id. The Bertine majority stated that police had only limited time and expertise to reflect on and balance the interests involved. Id.
171. See Reamy, supra note 4, at 348. Reamy suggests that courts vastly underestimate the sophistication of today's police officers and their general desire to proceed in
constitutionally approved ways. Id. Reamy implies that an "all or nothing" per se approach is not really essential, because police can make ad hoc judgments. Id.
172. See, e.g., Terry v. Ohio, 392 U.S. 1 (1968) (officers may make an ad hoc decision to conduct a warrantless stop and frisk based on reasonable and articulable
suspicion).
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an individual clearly possesses a reasonable expectation of privacy
. . . the rights of the fourth amendment cannot be eliminated by ad3
ministrative fiat.ll
The Bertine rule thus poses an ominous future, where our constitutional rights will continue to disintegrate. Extensions of inventory searches might threaten cherished concepts such as the
sanctity of the home. Already, several prosecutors have argued,
albeit unsuccessfully, that the inventory exception rationale legitimizes warrantless searches in houses and hotel rooms. 74
States have responded to such threats by offering greater
protections and privacy rights to citizens under their state constitutions. 7 5 The decision in Bertine may thus encourage federalism, promote continued litigation, and indirectly frustrate the
Supreme Court's goal of uniformity in the area of inventory
76
L
law.
The easiest and wisest approach to inventory is simply to
recognize it for what it truly is: a limited and narrowly tailored
exception. As originally conceived, inventory was a magnanimous gesture made by police in order to fulfill their "community
caretaking" functions. 177 Clearly, no one ever intended inventory
to be transformed into such a broad rule of law. Unfortunately,
the Bertine Court has done just that. The new standard threatens to erode fourth amendment protection. Unless the Court returns to a warrant or balancing test, the privacy rights of count173. People v. Bertine, 706 P.2d 411, 419 (Colo. 1985).
174. Brief for Respondent at 40, Colorado v. Bertine, 107 S. Ct. 738 (1987). E.g.,
United States v. Parr, 716 F.2d 796 (11th Cir. 1983) (rejecting fireman's protective inventory house search for valuables); United States v. Lyons, 706 F.2d 321 (D.C. Cir. 1983)
(hotel room inventory subsequent to occupant's arrest found unlawful).
175. Note, supra note 9, at 229-34. As long as a decision or reversal of a conviction
is based on "independent and adequate state grounds," the United States Supreme
Court will not review it. Id. at 234. In effect, then, the state has a device for avoiding
undesirable Supreme Court precedents, although federal courts are bound. Id. at 235.
For more information on state constitutional analysis and additional state protections
for motorists, see Note, The Automobile Inventory Search Exception: The Supreme
Court DisregardsFourth Amendment Rights in Colorado v. Bertine-The States Must
Protect the Motorist, 62 NOTRE DAME L. REV. 366, 374, 380 (1987) (urging state courts to
supplement the inadequate, minimum level of protection established by Bertine).
176. See Bertine, 107 S. Ct. at 743. The majority in Bertine envisioned a "single
familiar standard." Id. This could be accepted or altered by each state in accordance
with local statutes and state constitutions.
177. Cady v. Dombrowski, 413 U.S. 433, 441 (1973); Mozzetti v. Superior Court, 4
Cal. 3d 699, 707, 709, 484 P.2d 84, 89-90, 94 Cal. Rptr. 412, 417-18 (1971).
1988]
FOURTH AMENDMENT
293
less motorists will be compromised and diminished. The need to
strictly limit the inventory exception is thus absolute.
Rene6 A. Brandner