KS: State’s failure to prove the inventory policy was fatal to the inventory search

State’s failure to prove the inventory policy was fatal to the inventory search. State v. Baker, 2017 Kan. LEXIS 310 (June 9, 2017):

The Wells rule applies here—standardized criteria or an established routine must regulate the opening of containers found during inventory searches. Opening all containers, no containers, or opening only those containers “whose contents officers determine they are unable to ascertain from examining the containers’ exteriors” are all constitutionally permissible practices so long as they are standardized and well established. Wells, 495 U.S. at 4. A written policy undoubtedly has the advantage of providing certainty as to the established practices, but it is not required. People v. Williams, 20 Cal. 4th 119, 126-27, 973 P.2d 52, 83 Cal. Rptr. 2d 275 (1999) (“Wells does not require a written policy governing closed containers … but the record must at least indicate that police were following some ‘standardized criteria’ or ‘established routine’ when they elected to open the containers.”); State v. Wilson, 1994- NMSC 009, 116 N.M. 793, 797, 867 P.2d 1175 (1994) (“Inventory search procedures must be standardized, but need not be written.”).

However, producing no evidence of a policy with respect to the opening of containers—as occurred here—does not pass constitutional muster. Wells, 495 U.S. at 4-5; see United States v. Mendez, 315 F.3d 132, 137 (2d Cir. 2002) (law enforcement may open closed containers during an inventory search as long as they act in good faith pursuant to established procedures); United States v. Richardson, 121 F.3d 1051, 1055 (7th Cir. 1997) (searching closed containers as part of an inventory search is permissible so long as standardized criteria or established routines exist regarding the opening of closed containers); United States v. Evans, 937 F.2d 1534, 1538-39 (10th Cir. 1991) (search of defendant’s carry-on bag was a valid inventory search in accordance with department policy directing officer to open locked containers before booking). We find nothing in the record before us to establish that the search which occurred here was anything other than general rummaging.

Consequently, we hold the State did not prove by a preponderance of the evidence that the contraband would have been inevitably discovered through a valid inventory search of Baker’s backpack. Therefore, the district court erred in denying Baker’s motion to suppress, and we reverse and remand for further proceedings consistent with this opinion.