from Jefferson Circuit Court (CC-14-4369; CC-14-4370)
Ladell Keith pleaded guilty to unlawful possession of a
controlled substance, see § 13A-12-212, Ala.
Code 1975, and first-degree unlawful possession of marijuana,
see § 13A-12-213, Ala. Code 1975. Pursuant to a
plea agreement with the State, Keith was sentenced to 130
months' imprisonment for each conviction, to be served
concurrently; those sentences were split, and he was ordered
to serve 24 months. Before entering his guilty plea, Keith
filed a motion to suppress the evidence that formed the basis
of the charges against him. After a hearing on the matter,
the trial court denied Keith's motion. Keith subsequently
reserved that issue for appellate review during his
guilty-plea colloquy. (R. 14.)
hearing on Keith's motion to suppress, Nathan Elmore, an
officer with the Birmingham Police Department, testified that
he pulled Keith over after he determined that the license
plate on Keith's vehicle was registered to a different
vehicle. Officer Elmore stated that, after he executed the
traffic stop, he approached Keith and asked for his
identification. When Officer Elmore ran Keith's
information through dispatch, it was determined that Keith
had outstanding warrants for driving with a revoked license,
disregarding a stop sign, and "one other charge"
related to a traffic violation. (R1. 19.) After confirming
that the warrants were valid, Officer Elmore placed Keith
under arrest. Officer Elmore testified that Keith was not
violating any traffic laws before he decided to run
Keith's license plate number and that, when he frisked
Keith, he found no contraband, nor was any contraband in
plain view inside of Keith's vehicle. According to
Officer Elmore, he conducted an inventory search of
Keith's vehicle only after a decision was made to have
the vehicle towed and impounded. During the inventory search,
Officer Elmore discovered marijuana and other controlled
substances underneath the passenger's seat.
motion to suppress the evidence seized during the inventory
search, Keith argued that the search was unconstitutional
because it was conducted without a warrant and because none
of the recognized exceptions to the warrant requirement
existed. The State argued that the evidence discovered in
Keith's vehicle was admissible because it was discovered
during an inventory search, a well recognized exception to
the warrant requirement.
State v. Landrum, 18 So.3d 424 (Ala.Crim.App.2009),
this Court explained:
"'This Court reviews de novo a circuit court's
decision on a motion to suppress evidence when the facts are
not in dispute. See State v. Hill, 690 So.2d 1201,
1203 (Ala. 1996); State v. Otwell, 733 So.2d 950,
952 (Ala.Crim.App.1999).' State v. Skaggs, 903
So.2d 180, 181 (Ala.Crim.App.2004). In State v.
Hill, 690 So.2d 1201 (Ala. 1996), the trial court
granted a motion to suppress following a hearing at which it
heard only the testimony of one police officer. Regarding the
applicable standard of review, the Alabama Supreme Court
stated, in pertinent part, as follows:
"'"Where the evidence before the trial court
was undisputed the ore tenus rule is inapplicable, and the
Supreme Court will sit in judgment on the evidence de novo,
indulging no presumption in favor of the trial court's
application of the law to those facts." Stiles v.
Brown, 380 So.2d 792, 794 (Ala. 1980)(citations
omitted). The trial judge's ruling in this case was based
upon his interpretation of the term "reasonable
suspicion" as applied to an undisputed set of facts; the
proper interpretation is a question of law.'
"State v. Hill, 690 So.2d at 1203-04."
18 So.3d at 426. Because the evidence presented at the
suppression hearing is not in dispute, the only issue before
this Court is whether the trial court correctly applied the
law to the facts presented at the suppression hearing, and we
afford no presumption in favor of the trial court's
well settled that "warrantless searches are per se
unreasonable, unless they fall within one of the recognized
exceptions to the warrant requirement." Hinkle v.
State, 86 So.3d 441, 451 (Ala.Crim.App.2011)(internal
citations omitted). Those exceptions are: "(1) plain
view; (2) consent; (3) incident to a lawful arrest; (4) hot
pursuit or emergency; (5) probable cause coupled with exigent
circumstances; (6) stop and frisk situations; and (7)
inventory searches." Id.
South Dakota v. Opperman, 428 U.S. 364, 376 (1976),
the United States Supreme Court held that inventory searches
conducted by police were not unreasonable under the Fourth
Amendment and thus created an exception to the warrant
requirement. The Court stated that the inventory search was
"developed in response to three distinct needs:  the
protection of the owner's property while it remains in
police custody;  the protection of the police against
claims or disputes over lost or stolen property;  and the
protection of the police from potential danger." 428
U.S. at 369. In Colorado v. Bertine, 479 U.S. 367,
376 (1987), the Court held that the existence of police
discretion in conducting inventory searches did not render
the inventory-search exception unconstitutional "so long
as that discretion is exercised according to standard
criteria and on the basis of something other than suspicion
of evidence of criminal activity."
Ex parte Boyd, 542 So.2d 1276, 1281 (Ala. 1989), the
Alabama Supreme Court, in addressing the issue of inventory
searches, considered the following question: "[W]hat
constitutes evidence that the police complied with reasonable
or standardized police regulations or procedures relating to
automobile inventory practices?" In Boyd, the
appellant objected at trial "to the admission of
testimony concerning evidence obtained from the inventory on
the ground that no testimony or other evidence established
what the policies or procedures of the Anniston Police
Department relating to inventory searches were." The
"Throughout the majority, concurring, and dissenting
opinions of Bertine are references to and quotations
from the written procedures followed by the Boulder,
Colorado, police department in conducting inventories.
Accompanying that evidence was the testimony of officers
concerning the manner in which inventories were accomplished.
Upon review of that evidence, the Supreme Court was able to
conclude that 'reasonable police regulations relating to
inventory procedures administered in good faith satisfy the
Fourth Amendment, ' Bertine, 479 U.S. at 374,
107 S.Ct. at 742, and that police procedures were
satisfactory so long as conducted "according to standard
criteria.' Id. at 375, 107 S.Ct. at 743.
"Here, we can not determine whether the regulations of
the Anniston Police Department relating to inventory searches
are 'reasonable, ' or whether the police acted in
accord with 'standard criteria.' Sergeant Watson
testified that the inventory was done 'in compliance with
the policies of the police department.' Officer Bradley
added that he 'usually' took photographs of the
subject automobile when a 'major crime' was involved.
Neither officer knew where the policy was recorded.
Furthermore, there was no testimony whatsoever that provided
the particulars of the policy. Without more, we can not
possibly conclude that the police department's inventory
policy was reasonable. Proving the reasonableness of a
warrantless search is a burden borne by the State. Teat
v. State, 409 So.2d 940 (Ala.Crim.App.1981). Without
such proof, the search is constitutionally defective. In this
case, the issue was properly preserved, and we conclude that
the search can not be upheld as an inventory."
Boyd, 542 So.2d at 1281-82.
Court in Boyd also held "that a police
officer's conclusory testimony that the inventory was
done in compliance with departmental regulations" does
not, of itself, satisfy the Fourth Amendment. 542 So.2d at
1282. Finally, the Court noted that no inventory list was
contained in the record on appeal. Despite testimony that a
list was created, the Court held that "the State's
failure to provide evidence of the inventory list implanted
one more impermissible chink in the petitioner's Fourth
Amendment armor." 542 So.2d at 1283. In conclusion, the
"We are not, by our holding herein, imposing new,
strange, or unwarranted burdens on Alabama law enforcement
agencies. Indeed, Opperman and Bertine
created a narrow Fourth Amendment exception that renders
admissible otherwise excludable evidence; however, for such
evidence to pass constitutional muster, the record
must sufficiently reflect what that policy
is, describe the policy in such a way that its
reasonableness can be reviewed, and present adequate
evidence of what the employed criteria were."
542 So.2d at 1283
record in the present case contains the same defects that
rendered the search in Boyd unconstitutional.
Although the State elicited testimony from Officer Elmore
regarding the police department's inventory-search
policy, that testimony was limited. Officer Elmore testified
that it was the department's policy to inventory a
vehicle before it is towed "[t]o make sure that
everything that [the arrestee] says is in the vehicle is
still in there." (R1. 8.) Elmore testified that he
completed the inventory and created an inventory list;
however, he did not have the list with him at the hearing and
it is not contained in the record before this Court. The
State did not elicit any testimony regarding where a copy of
the department's policy could be found, the particular
criteria for conducting an inventory search contained in the
policy, and whether Officer Elmore followed that criteria
when he conducted the search of Keith's vehicle. Similar
to Boyd, the lack of evidence presented by the State
at the suppression hearing prevents us from being able to
review the reasonableness of the officer's search.
Accordingly, we hold that the purported inventory search of
Keith's vehicle violated the Fourth Amendment and cannot
dissent contends that the present case is distinguishable
from Boyd "in significant respects." __So.
3d __at __(Joiner, J., dissenting). First, the dissent points
out that "unlike the defendant in Boyd, Keith,
once the officer testified that he had performed the search
in accordance with the department's policy, did not
object to any 'further testimony concerning the inventory
or its fruits unless proof was made as to what the policies
or procedures were.'" Id. Keith did not
object to any further testimony regarding the
department's policy because there was no further
testimony regarding the department's policy. That
deficiency is the basis for the holding in the present case.
We also note that the relevant objection in Boyd was
made during trial. In the present case, Keith's argument
was made during a hearing on his motion to suppress,
immediately after the State's witness testified in an
attempt to justify his warrantless search of Keith's
vehicle. To say that this argument did not "put the
trial court on timely and adequate notice that Keith was
challenging the reasonableness of the policy of the
Birmingham Police Department regarding inventory
searches" defies common sense.
the dissent points to the Boyd Court's holding
regarding the delay between the impoundment of Boyd's
vehicle and the subsequent inventory search and correctly
asserts that "nothing in the record indicates that any
significant length of time elapsed between impoundment and
the search [in the present case]." Id. However,
the length of time between the search and the impoundment is
irrelevant in the present case. The holding in Boyd
regarding the temporal proximity between the impoundment and
the search was mutually exclusive from the holding regarding
the lack of evidence as to the police department's
inventory policy. See Boyd, 542 So.2d at 1281
("We also point out another basis for our
conclusion that this search cannot be upheld as a
constitutional inventory." (emphasis added)).
the dissent states: "Officer Elmore's testimony,
albeit brief, was sufficient to indicate what the
policy was (to perform an inventory search on every vehicle
that is towed) and why the inventory-search policy
existed ('[t]o make sure that everything that he says is
in the vehicle is still in there')." We agree.
However, Boyd also requires the State to
"describe the policy in such a way that its
reasonableness can be reviewed, and present adequate
evidence of what the employed criteria were."
542 So.2d at 1283. Nothing in Officer Elmore's testimony
allows this Court to determine, for example, whether the
department's policy would allow an officer to search a
container found inside a vehicle. The fact that all impounded
vehicles are inventoried says nothing about the specific
criteria that are employed when conducting those inventories.
Accordingly, we are unable to determine whether those
criteria are reasonable.
the dissent attempts to distinguish Boyd by noting
that Officer Elmore's testimony suggested that the
department's policy gives officers no discretion in
deciding which vehicles to inventory. According to the
dissent, the evidence in Boyd "included
testimony indicating, among other things, that an inventory
search was performed in some cases but not others...."
__So. 3d at __. However, no such testimony was elicited in
Boyd. In fact, the testimony in Boyd was
nearly identical to the testimony in the present case. The
officer in Boyd stated: "Whenever a vehicle is
impounded, this vehicle has to be inventoried thoroughly in
order to determine and document anything that may be
contained therein." Although another officer went on to
state that officers sometimes used a camera when
conducting inventory searches, there was absolutely no
testimony that officers had discretion in determining whether
to perform an inventory search on a vehicle once it was
Boyd is not distinguishable from the present case in
any meaningful way, and the search in the present case
suffers from the same constitutional defects.
brief on appeal, the State alternatively argues that the
search was justified as a search incident to a lawful arrest.
In support of that argument, the State cites Sheffield v.
State, 606 So.2d 183, 187 (Ala.Crim.App.1982), in which
this Court held:
"After arresting the driver of an automobile, an officer
may, as a contemporaneous incident of that arrest, search the
passenger compartment' of that car, including 'the
contents of any containers found within the passenger
compartment.' New York v. Belton, 453 U.S. 454,
460, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768 (1981); Daniels
v. State, 416 So.2d 760, 763 (Ala. Cr. App. 1982).
See also, State v. Calhoun, 502 So.2d 808
the above-quoted passage from Sheffield relies on
New York v. Belton, 453 U.S. 454 (1981), in support
of the broad rule that police may search the passenger
compartment of a vehicle after arresting the driver. In
Arizona v. Gant, 556 U.S. 332, 351 (2009), the
United States Supreme Court narrowed the
search-incident-to-arrest exception announced in
Belton and held that "[p]olice may search a
vehicle incident to a recent occupant's arrest only if
the arrestee is within reaching distance of the passenger
compartment at the time of the search or it is reasonable to
believe the vehicle contains evidence of the offense of
arrest. When these justifications are absent, a search of an
arrestee's vehicle will be unreasonable unless police
obtain a warrant or show that another exception to the
warrant requirement applies."
Gant, the appellant's vehicle was searched after
he was "arrested for driving with a suspended license,
handcuffed, and locked in the back of a patrol car." 556
U.S. at 335. The United States Supreme Court agreed with the
Arizona Supreme Court's holding that the
search-incident-to-arrest exception did not apply because
"Gant could not have accessed his car to retrieve
weapons or evidence at the time of the search."
Id. The Court also found the search of Gant's
vehicle unreasonable because, it said, police could not
reasonably have believed that evidence of the crime for which
Gant was arrested, i.e., driving with a suspended license,
might have been found in the passenger compartment of
Gant's car. Id. at 344.
present case, Officer Elmore testified that Keith's
vehicle was searched after Keith was arrested. (R1.
9.) Thus, Keith could not have accessed any part of his
vehicle at the time of the search. Additionally, Keith was
arrested for outstanding warrants involving traffic
violations. Like the officers in Gant, Officer
Elmore could not have reasonably expected to find evidence of
those crimes inside of Keith's vehicle. Accordingly,
under Gant, Officer Elmore's warrantless search
of Keith's vehicle did not qualify as a search incident
to arrest and, therefore, violated the Fourth Amendment.
also argues that it was unconstitutionally pretextual for
police to run his license-plate number without any reasonable
suspicion that Keith was violating the law. Because we have
determined that the subsequent search was unconstitutional,
we need not address that issue.
foregoing reasons, the trial court erred by denying
Keith's motion to suppress. Accordingly, the judgments of
the trial court are reversed and these cases are remanded ...