United States District Court, S.D. Georgia, Savannah Division
February 14, 2018, the Court held an evidentiary hearing on
defendant's motion to suppress a firearm discovered
during a warrantless search of his vehicle after he was
lawfully stopped and arrested for various traffic violations.
That search, the government contends, was a proper
“inventory search” conducted pursuant to
established police department policy designed to safeguard
any property contained within the vehicle and to protect the
police from claims of property loss or potential danger. Au
contraire, says the defendant -- the real purpose of the
search was to check the car for evidence of a crime. Only
when a pistol was found under the driver's seat did the
officers decide to impound the vehicle. Absent the discovery
of that firearm, he argues, the officers would have allowed
the car to be parked at the curb next to the home of the
further consideration of the evidence and the arguments of
counsel, the Court has decided to reopen the suppression
hearing. The reasons for that decision are explained in this
assessment of the reasonableness of police conduct under the
Fourth Amendment involves
“‘predominantly an objective
inquiry.'” Ashcroft v. al-Kidd, 563 U.S.
731, 736 (2011) (emphasis added) (citation omitted). Indeed,
“[s]ubjective intentions play no role in ordinary,
probable-cause Fourth Amendment analysis.” Whren v.
United States, 517 U.S. 806, 813 (1996) (a traffic stop
based on probable cause is constitutionally reasonable even
if the officer had an “ulterior motive” for the
stop). An officer's “actual motivations”
do matter, however, in the limited category of
searches that are permissible even in the absence of probable
cause. Id.; al-Kidd, 563 U.S. at 736.
Inventory searches, which are justified as a protective
measure whenever the police take custody of a motor vehicle,
are one instance where the police must have a pure motive for
their otherwise objectively reasonable conduct.
Whren, 517 U.S. at 811. Thus, inventory searches
(like administrative searches conducted in the absence of
probable cause) “must not be a ruse for a general
rummaging in order to discover incriminating evidence.”
Id. (quotes and cite omitted). Even if the police
have the discretionary power to take protective custody of,
and hence inventory, a particular motor vehicle, they violate
the Constitution if they act “‘in bad faith or
for the sole purpose of investigation.'”
Id. (quoting Colorado v. Bertine, 479 U.S.
367, 372 (1987)).
apparent from the officer bodycam videos tendered by the
government, and from Officer Joseph Overholt's testimony
at the hearing, that Overholt was not himself
inclined to search the vehicle defendant was driving. Instead
of exercising his discretion to impound the vehicle, he spent
considerable effort endeavoring to arrange for the vehicle to
be moved from the street, where it was blocking traffic, and
parked at the curb, and he did this in order to spare the
defendant (or the vehicle's owner, who was not present),
the costly tow and storage fees. Officer Overholt abandoned
this plan only after his on-scene sergeant commented,
“Y'all gonna look through this first?” Video
20, file-2 (“Overholt Bodycam”) at 16:30-35. The
officer interpreted his sergeant's comment as meaning
“that an inventory search must be made, ” thus
leaving him with one option -- impoundment. It is clear to
the Court that Overholt treated his sergeant's comment as
a directive, not a mere suggestion. Thus, it was the
sergeant, not Overholt, who made the call to search the
vehicle “first.” As the sergeant was the
decisionmaker, it is his actual motivations that become
important to the Court's analysis.
Overholt testified that when his sergeant “said go
through the vehicle, I assumed he was referring to
an inventory search and knew that a tow must be made.”
Suppression hearing transcript at 32 (emphasis added). The
officer, however, disavowed any knowledge of his
sergeant's actual motivations for wanting the vehicle
searched “first, ” nor did he know what the
sergeant intended to come “second” to that
search. Id. at 33 (“I can't assume what he
meant.”). Further, when asked why his sergeant would
have stood by and allowed him to waste his time arranging to
have the car moved to the curb (where it could be left
legally parked) if the sergeant's real intention was to
impound and tow that vehicle, Officer Overholt admitted that
he could furnish no answer to that question. Id.
evidence now stands, the Court is unable to determine what
motivated Overholt's supervisor to direct his subordinate
officer to conduct a search of the vehicle. The record
certainly does not establish that the sergeant had a
“bad” motive -- i.e., that his sole
purpose was to conduct an investigative search for contraband
or other evidence of a crime and, if nothing turned up, then
allow the car to be left legally parked just as Overholt
initially intended. But neither does the existing record
eliminate that possibility.
as here, the driver of a vehicle is arrested and the owner is
not available, the Savannah police have the
“discretion” either to (1) impound the vehicle
“for safekeeping” or (2) leave it “legally
parked at the request of the driver.” Doc. 37-2 at 5
(SCMPD impoundment policy § VI.A.) Only if the police
elect to impound the vehicle are they permitted by the policy
to inventory it. Id. at 8 (§ XI). The police simply
do not have the option -- either under their policy or under
the Constitution -- to conduct a suspicionless search of a
vehicle first and then decide whether to impound it.
Where a suspicionless search is allowed under the
Constitution because a special purpose (such as a protective
inventory) is being served, the “actual
motivations” of the police become critical, for the
exemption from the probable cause requirement does not obtain
if the search is not made for that special purpose.
Whren, 517 U.S. at 811-12; al-Kidd, 563
U.S. at 736-37. It therefore becomes necessary for the Court
to assess the actual motivation of the police official who
made the call to search defendant's vehicle --
Overholt's supervising sergeant.
these reasons the Court is reopening the suppression hearing.
At that hearing the government shall offer evidence as to the
sergeant's actual motivation for directing that the
defendant's vehicle be searched.
 Officer Overholt had even enlisted the
services of a neighbor and friend of defendant's family
to park the vehicle, confirmed that she had a valid license,
and furnished her with the car keys. The defendant expressed
his assent to this plan.
 Indeed, Overholt conceded that, but
for his sergeant's comment, he would have allowed the car
to be moved a few feet to the curb and would not
have searched it.
 While the government is correct that
the police had technical “custody” of the vehicle
from the moment they arrested its driver, they did not assume
“protective custody” of that vehicle within the
meaning of their written policy, or have a concomitant right
to inventory ...