Concept
Inventories of Arrestees
Inventory search
Inventories of Arrestees
The facts of Illinois v. Lafayette are ordinary, which is part of why the case teaches well. An officer answering a disturbance call at a movie theater in Kankakee, Illinois, found the respondent in an altercation with the theater manager, arrested him for disturbing the peace, handcuffed him, and took him to the police station, where the respondent still carried a purse-type shoulder bag. In the booking room the officer removed the handcuffs and ordered him to empty his pockets onto the counter. The respondent then took a package of cigarettes out of the bag and set the bag down, and the officer removed the rest of its contents and found ten amphetamine pills inside the plastic wrap of a cigarette package.1
At the suppression hearing the officer explained that he opened the bag because standard procedure was to inventory everything in an arrested person's possession. He testified that he was neither seeking nor expecting drugs or weapons, and he conceded that the bag was small enough to be sealed and stored in a locker.2 The State's first theory for the search arrived late: after the hearing but before any ruling, it argued for the first time that the search was valid as a delayed search incident to arrest.3 The trial court suppressed the pills and the Illinois Appellate Court affirmed. The Supreme Court then reversed the Appellate Court's judgment.4
The Court sustained the search as an inventory, and the rule it announced is that it is not unreasonable for police, as part of the routine procedure incident to incarcerating an arrested person, to search any container or article in his possession, in accordance with established inventory procedures.5 Stated as an exception, a station-house inventory of an arrestee's belongings before incarceration, following a valid arrest, is a recognized exception to the warrant requirement.6 The label tells you how the doctrine works. An inventory is an incidental administrative step that follows arrest and precedes incarceration, and it is not an independent legal concept that lets police look inside an object whenever they would like to.7 Because the justification is the booking process itself, the search does not depend on probable cause that the bag holds anything, and the officer's own testimony that he expected to find nothing of interest did not weaken it. The Court was unanimous on this result.8 The two subsections below take the holding in two steps: where the inventory sits in the sequence from arrest to jail, and why the Court refused to require a gentler alternative.
Booking-Stage Inventory
The inventory has a fixed place in the sequence that runs from arrest to jail. It occurs after the arrest is made and the person has been brought in, but before the person is placed in confinement.9 Arrival at the station does not break the arrest. An arrested person is not invariably taken to a station or confined, but one who is taken there remains in the custody that began with the arrest.10 Even so, the reasons that justify a search at the station differ from the reasons that justify a search at the place of arrest. The government's interests at the station house may in some circumstances be even greater, so the scope of a station-house search will often differ from that of a search made at the time of arrest.11
The setting also changes what is practical and reasonable. Police conduct that would be impractical, unreasonable, or embarrassingly intrusive on the street can be performed more readily, and more privately, at the station.12 The Court's own illustration is that the interests supporting a search incident to arrest would hardly justify disrobing an arrestee on the street, yet the practical necessities of routine jail administration may even justify taking a prisoner's clothes before confining him, although that step would be rare.13 The opinion drew on an earlier decision, United States v. Edwards, for the point that with or without probable cause the authorities at the station could search an arrestee's clothing and also take it and keep it in official custody.14
The timing matters because it ties the search to the event that creates the need for it. At booking, police are about to take possession of everything the arrestee carries and to hand the arrestee over to a jail. That handover is the moment at which the interests described in Section 1 come into play: the duty to safeguard what police are holding, the need to protect the department against false claims and theft, and the risk that a hidden blade or other dangerous item will enter the jail or come back out on release. The holding therefore speaks of a routine procedure incident to incarcerating an arrested person, and the opinion describes property found on an arrestee who is to be jailed.15 Suspicion about a particular bag plays no part in that picture, because it is immaterial whether police actually fear any particular package or container.16 A student who asks whether the officer had probable cause to open the bag is therefore asking the wrong question of an inventory. The right question is whether the search was the routine booking step, carried out under an established procedure.
The sidewalk scene and the Kankakee booking room share an arrestee, a bag, and a lack of suspicion, so none of those facts separates them. What separates them is the booking step. In the booking room the bag was examined and listed as part of processing a person about to be jailed, which is the setting the exception covers.17 On the sidewalk the same look inside the bag is only a search made because an arrest occurred, and Section 5 explains how that differs from an inventory.
Less Intrusive Alternatives
The Illinois Appellate Court had suppressed the pills because, in its view, protecting the arrestee's property and protecting police from claims of lost or stolen property could have been achieved in a less intrusive manner. Its example was that the shoulder bag could easily have been secured by sealing it in a plastic bag or box and placing it in a locker.19 The argument had force on the record, since the officer admitted the bag was small enough to be sealed. The Supreme Court answered by changing the question. Perhaps the gentler method would have worked, but the real inquiry is whether the Fourth Amendment requires such steps, and it is not the Court's function, in its words, to write a manual on administering routine, neutral procedures of the station house.20
That answer follows from earlier decisions that had already refused to make reasonableness turn on the availability of a gentler means. In Cady v. Dombrowski the Court upheld a search of a car's trunk for a revolver suspected to be there, and it rejected the contention that posting a guard over the car would have protected the public equally well.21 In South Dakota v. Opperman the Court found no need to consider whether police could instead have locked the impounded car and kept it in safe storage under guard.22 The same reasoning carried over to the booking counter. Courts are poorly placed to decide which practical administrative method will best deter theft by and false claims against a department's employees and preserve the security of the station house, so the Court declined to second-guess police departments on that choice.23
A second reason concerns what officers can realistically do. Even if a gentler method existed for some kinds of property, it would be unreasonable to expect officers in the everyday course of business to make fine and subtle distinctions about which containers may be searched and which must be sealed as a unit.24 The Court tied this to its insistence elsewhere on a single familiar standard for officers who have little time and expertise to weigh competing interests.25 A less-intrusive-means test would force the officer at the counter to sort each bag into one that can be sealed and one that must be opened. Each sorting decision would later be reexamined by a court able to imagine another storage method, and the result would be unpredictability for police and litigation over locker availability in every case. The sealing alternative also leaves something undone, because an item-by-item list is what protects the department against a later claim that an item was never returned.26 Some courts had held that sealing and securing the container without examining its contents was enough, and the Court rejected that position as a Fourth Amendment limitation.27
The locker argument fails in the first scene, because the rule asks whether the Fourth Amendment requires sealing and a routine inventory is not unreasonable merely because a gentler method was available.28 The second scene fails for a different reason. No gentler alternative is needed to defeat it, because the holding covers searches made in accordance with established inventory procedures, and an officer's hunch is not such a procedure.29 The rejection of the less-intrusive-means argument therefore protects a routine, standardized practice, and Section 4 develops what makes a procedure standardized and how courts separate a real inventory from a pretext.
Booking-Stage Inventory
The inventory has a fixed place in the sequence that runs from arrest to jail. It is an incidental administrative step that follows the arrest and precedes incarceration, which puts it in the booking room of the station house.31 In dictionary terms, it is a complete search of an arrestee before booking into jail, after which the possessions found are typically held in police custody.32 Arrival at the station does not interrupt the arrest, because an arrestee who is taken there remains in the custody that began at the scene.33 That continuing custody must itself be lawful, since the recognized exception is stated for a station-house inventory of the arrestee's belongings following a valid arrest.34 Once a suitcase or similar container has lawfully come into police hands in this way, an item-by-item listing of what it holds is permitted at the station.35
Reaching the station changes the analysis, because the reasons that support a search there differ from the reasons that support one at the scene. At the scene, the justifications for searching an arrestee are the risks of harm to officers and destruction of evidence that accompany a custodial arrest.36 At the station, the person and the belongings are about to pass into the hands of a jail, so the government has its own interests in processing both safely and in an orderly way. Those interests may in some circumstances be even greater than the ones that support a search right after the arrest, and so the scope of a station-house search will often differ from the scope of a search made at the time of arrest.37 The setting also changes what is practical. Police conduct that would be impractical, unreasonable, or embarrassingly intrusive on the street can be carried out more readily, and more privately, at the station.38
The Court's own illustration shows how far the difference can go. The interests behind a search incident to arrest would hardly justify disrobing an arrestee on the street, yet the practical necessities of routine jail administration may even justify taking a prisoner's clothes before confining him, although that step would be rare.39 The opinion drew that point from United States v. Edwards, which allowed station-house authorities to search an arrestee's clothing and also to take it and keep it in official custody, without regard to whether probable cause existed.40 Two features of booking explain why no suspicion is required. The first is that a person taken into custody has a diminished expectation of privacy, and both the person and the property in his immediate possession may be searched at the station house.41 The second is that routine administrative steps at the station incident to booking and jailing have different origins and different justifications from the search of a place, which depends on a fair probability that contraband or evidence will be found there.42 The booking inventory therefore draws its justification from the jailing process itself, which is why it can go forward without probable cause that a bag holds anything.
What the inventory reaches is the arrestee's property. At the station house, it is entirely proper for police to remove and list the property found on the person or in the possession of an arrested person who is to be jailed.43 That includes containers and not only what is in the pockets. In Illinois v. Lafayette the officer had the arrestee empty his pockets at the booking counter and then removed the contents of a purse-type shoulder bag, finding ten amphetamine pills inside the plastic wrap of a cigarette package.44 The Court allowed police to examine the belongings an arrestee carried at the stationhouse before incarceration, and it treated that inventory as a recognized exception to the warrant requirement.45 The officer there testified that he was neither seeking nor expecting drugs or weapons, a detail that previews a later point: the search is judged by whether it was the routine booking step, and the officer's hunch does not enter into the judgment.46
The timing matters because it ties the search to the event that creates the need for it. Booking is the moment when property passes from the arrestee to the institution and when the arrestee is about to enter a place where lost-property disputes, theft, and hidden weapons cause real harm. Police at that moment hold both the person and the belongings, which is the situation in which the interests described in Section 1 come into play. Those interests are safeguarding what police are holding, deterring false claims and theft, and limiting the danger of hidden items, and they do not depend on any suspicion about a particular package, because the need to protect against such risks arises independently of an officer's subjective concerns.47 Inspecting an arrestee's belongings can also help police ascertain or verify the arrestee's identity.48 Because the justification is built from the booking process, the question to ask of an inventory is whether the search was that routine step, and whether the officer had probable cause to open the bag is the wrong question.
The citation scene and the Kankakee booking room share a bag and an absence of suspicion about it, so neither of those facts separates them. What separates them is custody at the point of incarceration. In Lafayette the bag was in police hands at the station on the way to a cell, which is when its contents become something police must list, store, and return. On the sidewalk the bag never entered police custody at all. The trap is applying the inventory label to a search made at the scene, where no booking has happened, and Section 5 shows how search incident to arrest and the automobile exception supply their own separate justifications.
Less Intrusive Alternatives
Once the booking-stage inventory is accepted as an exception, the most natural objection a defendant can raise is a practical one: the police could have protected the property without opening it. That objection won in the Illinois Appellate Court in Illinois v. Lafayette, which suppressed the amphetamine pills found in the arrestee's shoulder bag because protecting the property and shielding police from claims of loss could have been accomplished less intrusively, for example by sealing the bag in a plastic bag or box and locking it in a locker.50 The objection had force on the facts, since the officer agreed that the bag could have been secured that way.51 The Supreme Court reversed anyway, and its reasons supply the rule for this whole topic.
The Court did not dispute that sealing might have worked. It treated the question of what could have been achieved as beside the point and asked whether the Fourth Amendment requires such steps, adding that it is not the Court's function to "write a manual on administering routine, neutral procedures of the station house."52 The Court described its own role as assuring against violations of the Constitution, and a routine inventory is not a violation merely because a gentler storage method was available. The less-intrusive-means argument therefore fails as a ground for suppressing a routine inventory, because the reasonableness of a governmental search does not necessarily or invariably turn on whether less intrusive alternatives exist.53
Two earlier decisions had already refused to tie reasonableness to the availability of a gentler means. In Cady v. Dombrowski the Court upheld a search of a car's trunk for a revolver believed to be there and rejected the contention that a guard posted over the car would have protected the public equally well, explaining that "[t]he fact that the protection of the public might, in the abstract, have been accomplished by 'less intrusive' means does not, by itself, render the search unreasonable."54 In South Dakota v. Opperman the Court upheld the inventory of an impounded car's glove compartment without considering whether police could have locked the car and held it in safe storage under guard.55 Lafayette carried that refusal into the station house, where the alternative on offer was a locker in place of a look inside the bag.
The refusal rests on two reasons that operate at different levels. The first concerns who should make administrative choices. A court reviewing one inventory sees a single bag after the fact, and with hindsight it can almost always picture some other storage method, so a test keyed to the existence of alternatives would give every defendant a reason to describe a locker the department might have used. Each inventory would then be litigated as a dispute over the department's storage arrangements. The Court declined that role, observing that courts are hardly in a position to second-guess police departments about which practical method will best deter theft by and false claims against their employees and preserve station-house security.56 The sealing alternative also leaves a gap, because an itemized list is what lets a department answer a later claim that something was never returned, and the Court refused to make sealing without examination a Fourth Amendment requirement.57
The second reason concerns what officers can realistically do. Even if a gentler method existed for particular kinds of property, it would be unreasonable to expect officers in the everyday course of business to make fine and subtle distinctions about which containers may be searched and which must be sealed as a unit.58 The Court tied this point to its statement in New York v. Belton that "[a] single familiar standard is essential to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront."59 Fourth Amendment rules are meant to regulate police in their daily work, so they have to be usable by an officer standing at a booking counter without hairline distinctions.60 A less-intrusive-means test would force that officer to sort every bag into one that can be sealed and one that must be opened, and each sorting call would later be reviewed by a court able to imagine another method. A single rule for everything the arrestee carries removes the sorting.
The same refusal reaches vehicles. In Colorado v. Bertine, where a car was impounded incident to the driver's arrest, the Court rejected the idea that police must first resort to alternative less intrusive means, such as the owner's consent, and it also rejected the claim that a secure storage lot makes inventory unnecessary, since police may still wish to protect themselves or the lot's owner against false claims of theft and dangerous items.61 Section 3 takes up vehicle inventories in full. For present purposes, Bertine adds a qualification: if police do sometimes use such alternatives, the choice must follow standardized criteria set out in departmental regulations.62 That qualification marks the limit of everything above.
The Court rejected a least-restrictive-means requirement and left the requirement of a routine in place. Its holding is framed for searches of an arrestee's containers carried out in accordance with established inventory procedures.63 The sealing argument therefore fails only against an inventory that is otherwise routine, which makes established inventory procedures the condition students most often drop when they read the case as removing every limit.
The sealing argument is absent from the satchel scene and decisive in neither scene, so it cannot be what separates the two. In Lafayette the officer opened the bag under the department's practice, so the only thing left to say against the search was that a gentler method existed, and that is not enough.64 In the satchel scene there is no routine at all, so the officer's own choice stands in for procedure, and the prosecution is invoking the answer to an objection that nobody raised. The inventory exception is unavailable, and the pistol comes in only if some other doctrine supports the warrantless search. Section 4 develops what makes a procedure standardized and how courts tell a real inventory from a search for evidence in disguise.