MD: 40 years after questioning inventory, the author of those opinions comes around to embrace inventory

The vehicle inventory was caught on body camera, and the officer failed to include the spare tire, jack, and jumper cables. That did not make the inventory invalid. In addition, a valid inventory with a mixed motive is not unreasonable under the Fourth Amendment and it can lead to a plain view. More interestingly, three opinions criticized at the end of the opinion for their tone about inventory were written by the author of this opinion: “The attitude of those opinions was extremely cynical about the very institution of the inventory search and overtly editorial in tone. … In now distancing ourselves from that tone, we refrain from using a word as harsh as ‘repudiate,’ because the actual holdings of those cases were not necessarily incorrect as a matter of law. The attitude and the tone of the opinions, however, reflected a zeitgeist that is diametrically out of harmony with the now prevailing and more balanced understanding of inventory search law that has in more recent decades come of age.” (He doesn’t tell us he wrote those three.) State v. Paynter, 2017 Md. App. LEXIS 994 (Sept. 28, 2017) (Moylan, J.):

Circumstances frequently result in the police having to impound a citizen’s automobile. For the mutual benefit of police and citizen alike, such impounding will routinely be accompanied by an inventorying of the contents of the automobile. This procedure is not necessarily a part of an adversarial “cops and robbers” scenario in a typical criminal investigation and trial. It may be, rather, what the Supreme Court has characterized as a “community caretaking function.” Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973):

Local police officers … frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.

(Emphasis supplied).

Courts, therefore, must scrupulously forbear from reflexively looking upon this neutral police function with cynical disdain and must refrain from cavalierly dismissing such police behavior as presumptively a subterfuge. A modicum of trust would be more appropriate.

. . .

One further word may be in order about the precedential limits of stare decisis. In arguing this appeal, the appellee relies pervasively on language from a trilogy of opinions filed by this Court, the first dating back over 40 years: Dixon v. State, 23 Md. App. 19, 327 A.2d 516 (1974); Manalansan v. State, 45 Md. App. 667, 415 A.2d 308 (1980); and Bell v. State, 96 Md. App. 46, 623 A.2d 690 (1993), aff’d, 334 Md. 178, 638 A.2d 107 (1994). Dixon, of course, we decided two years before the Supreme Court filed South Dakota v. Opperman (1976). Manalansan and Bell followed in the attitudinal slipstream of Dixon. The attitude of those opinions was extremely cynical about the very institution of the inventory search and overtly editorial in tone. They are cited, moreover, not for any legal analysis, but basically for their adverse comments on the police behavior in those cases. In now distancing ourselves from that tone, we refrain from using a word as harsh as “repudiate,” because the actual holdings of those cases were not necessarily incorrect as a matter of law. The attitude and the tone of the opinions, however, reflected a zeitgeist that is diametrically out of harmony with the now prevailing and more balanced understanding of inventory search law that has in more recent decades come of age.

Like the title of the movie: “Dr. Strangelove or: How I Learned to Stop Worrying and Love the Bomb.”