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June 8, 1983


From the Circuit Court of Greene County; Criminal Appeal; Judge Jack A. Powell.

Motion for Rehearing Overruled, Transfer Denied June 30, 1983. Application Denied August 16, 1983.

Before Maus, P.j., Hogan, Prewitt, JJ.

The opinion of the court was delivered by: Prewitt

Appellant was convicted following jury trial of two counts of the class C felony of stealing. § 570.030, RSMo 1978. Appellant contends that the trial court erred in overruling her motion to suppress evidence of new clothing found by the police in the trunk of the car operated by her. She asserts that what the state contends was a valid inventory search of the automobile following its impoundment was actually a pretext for a search of the trunk. If evidence of the contents of the trunk were inadmissible no submissible case was made against appellant.

On February 22, 1980, two incidents of suspected shoplifting were reported to the Springfield Police Department. They occurred in two stores in the Plaza Towers Shopping Center. Similar descriptions of three females suspected were given to the police by employees of each store. Two of the women were white and one was black. Appellant is black. After the women left the stores, clothing was missing. They were not seen taking anything. A description of the vehicle that they were believed to be traveling in and its license plate were also given.

The police located the vehicle parked and unoccupied on the Battlefield Mall parking lot in Springfield. An officer remained nearby, observing the car. He saw appellant walk from the Mall, get in the car, and start to drive it away. He then stopped it. After the vehicle was stopped appellant was asked to produce identification of herself and she directed the officer to the glove compartment where certain papers were found. It is not clear if those included a driver's license.

Apparently in response to questions from him, appellant informed the officer that she was alone and that the car belonged to a friend. By use of his car radio, the officer "ran" a "license check" on the license plate and "a wanted check" on appellant. This disclosed that appellant was wanted for a speeding violation in Johnson County, Missouri. The check on the license plate indicated that the number was not "on file". The officer testified that this may indicate that the plates had been newly issued or that the file on them had been pulled for some other reason. There was no indication that the vehicle was stolen. While the officer was talking to appellant, two white females matching the descriptions of the other shoplifting suspects approached the car. Defendant stated that she had just met them, and apparently had given them a ride to the Mall.

The officer then arrested appellant for the speeding violation. He told her that because she said the car was not hers and ownership of it could not be established, that it would have to be impounded and towed away. Appellant then stated that the car did belong to her and that the other two females were friends of hers and asked that the vehicle be turned over to them. The officer testified that he told her that since she had previously stated that the car did not belong to her and that she had just met the women, and ownership of the car could not be established, he would not allow them to have the car.

The officer then informed appellant that he would have to conduct an inventory search of the car. She said that she did not have a key to the trunk. The officer took the keys to the vehicle from her and found a key to fit the trunk on the key ring. Prior to opening the trunk the owner of one of the stores that had reported the shoplifting arrived at the scene. She stated to the officers that they would find the missing clothing in the trunk of the car. The officer opened the trunk and it contained numerous pieces of clothing with tags still on them. The owner identified some of the clothes found in the trunk as those missing from her store. Some of the clothing in the trunk was taken to the other store and was identified as items taken from that store without payment or permission.

During these events and before the trunk was inventoried, two other police officers arrived. The three officers basically testified that the inventory was performed in accordance with standard police procedure and that vehicle impoundment is routine when the driver is arrested and the ownership of the vehicle is questioned. They stated that for the protection of both the police and the owner of the vehicle it was not normal police practice to leave a vehicle sitting at any location.

The state maintains, both at trial and here, that the opening of the trunk was justified as a valid inventory of an impounded vehicle conducted in accordance with departmental regulations. No contention is made that there was probable cause to arrest appellant for stealing or that there was any basis for an investigative search of the trunk. See State v. Eaton, 504 S.W.2d 12, 18-19 (Mo. 1973); State v. Jackson, 646 S.W.2d 367 (Mo. App. 1982).

As these issues are not presented here we do not address them except to note that generally an arrest for a traffic violation standing by itself will not provide probable cause for an officer to believe that the contents of an automobile offend against the law to justify searching the entire automobile. State v. Achter, 512 S.W.2d 894, 902 (Mo. App. 1974).

Although whether an inventory of an impounded vehicle constitutes a "search" within the meaning of the Fourth Amendment has been debated, the better view seems to be that such intrusions are searches and as such they are subject to the reasonableness requirement of the Fourth Amendment. 2 LaFave, Search and Seizure, A Treatise on the Fourth Amendment, § 7.4, pp. 563-565 (1978). See also South Dakota v. Opperman, 428 U.S. 364, 372-373 (1976); United States v. Wilson, 636 F.2d 1161, 1163 (8th Cir. 1980); United States v. Lawson, 487 F.2d 468, 472 (8th Cir. 1973).

Searches conducted outside the judicial process are unreasonable with a few specifically established and well-delineated exceptions, and the one who seeks to invoke such an exception has the burden of showing the need for it. State v. Achter, supra, 512 S.W.2d at 899. Consistent with the protection afforded by the Fourth Amendment of the United States Constitution, warrantless searches are prima facie invalid and may be subsequently condoned only if shown to have been justified by reason of specific exceptions. State v. Peterson, 583 S.W.2d 277, 280 (Mo. App. 1979). The burden is on the state to justify the failure to procure a warrant. Id. Searches of automobiles are, in general, subject to the ...

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