defendant's Fourth Amendment rights and therefore grant defendant's motion.
II. Applicable Legal Standards
The Fourth Amendment prohibits unreasonable government searches and seizures. Generally, a search must be conducted pursuant to a warrant to be considered "reasonable" under the Fourth Amendment.
However, police may conduct a warrantless "inventory search" of property that comes lawfully into their possession in order to protect that property while it is in police custody, to protect the police from claims over lost or stolen property, and to protect the police from potential danger.
Although often inventory searches involve the search of an arrestee's automobile, the inventory search exception extends to property found on an arrested person who is to be jailed. See Illinois v. Lafayette, 462 U.S. 640, 646, 103 S. Ct. 2605, 77 L. Ed. 2d 65 (1983) ("Examining all the items removed from the arrestee's person or possession and listing or inventorying them is an entirely reasonable administrative procedure").
While there is no need for the government to have probable cause before conducting an inventory search, protections against arbitrary exercises of police power are afforded by the requirement that inventory searches be conducted pursuant to a standardized or routine practice.
Thus, if permitted by applicable procedures, an officer may search containers or examine written material in the course of an inventory search. See United States v. Griffiths, 47 F.3d 74, 78 (2d Cir. 1995); Arango-Correa, 851 F.2d 54, 59 (permissible for agents to open notebooks in course of inventory search of forfeited vehicle). Even the fact that the officer may harbor an investigatory motive does not invalidate an otherwise appropriate inventory search. See United States v. Rodriguez-Morales, 929 F.2d 780, 787 (1st Cir. 1991), cert. denied, 502 U.S. 1030, 116 L. Ed. 2d 774, 112 S. Ct. 868 (1992); United States v. Gallo, 927 F.2d 815, 819 (5th Cir. 1991); United States v. Frank, 864 F.2d 992, 1003 (3d Cir. 1988), cert. denied, 490 U.S. 1095, 104 L. Ed. 2d 998, 109 S. Ct. 2442 (1989); United States v. Edwin Palacios and Jason Palacios, 957 F. Supp. 50, 1997 WL 104957, at *3 (S.D.N.Y. 1997).
On the other hand, "an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence." Florida v. Wells, 495 U.S. 1.4, 109 L. Ed. 2d 1, 110 S. Ct. 1632 (1990). It is for that reason that standardized criteria or an established routine must regulate an inventory search and in particular the search of "closed" items during such a search. The purpose of an inventory search should be to produce an inventory. A police officer should not be allowed so much discretion that inventory searches become "a purposeful and general means of discovering evidence of a crime." Colorado v. Bertine, 479 U.S. 367, 376, 93 L. Ed. 2d 739, 107 S. Ct. 738 (1987) (Blackmun, J., concurring). Thus, the government may not conduct a search of an arrestee's property to discover inculpatory evidence under the guise of an inventory search. See, e.g., United States v. Khoury, 901 F.2d 948, 958-59 (11th Cir. 1990); United States v. Prescott, 599 F.2d 103, 105 (5th Cir. 1979); Palacios, 957 F. Supp. 50, 1997 WL 104957 at *5.
III. Factual Background
As noted in the previous opinion, there is no question that Santos was lawfully arrested at a state prison by federal officers pursuant to pending federal charges. At the time the defendant was transferred to federal custody his belongings, contained in three duffel bags, were given to the arresting officer. Several days later, the arresting officer conducted a detailed inventory search.
At the February 13 hearing, Agent Meehan testified that the FBI legal handbook has a general written policy with respect to inventory searches. Section 5-3.8 of the Legal Handbook for Special Agents, titled "Inventory of Personal Property" is brief. It reads in full:
Items of personal property removed from a person who has been arrested and is to be incarcerated should be carefully inventoried by Agents prior to being stored for safekeeping. A receipt for such property should be prepared and given to the arrestee. This inventory should include the contents of containers such as purses, shoulder bags, suitcases, etc., whether or not the containers are locked or sealed. In the event such containers are locked or sealed great care must be taken to minimize damage to the container or its contents while gaining access. This caretaking function must not be construed as an alternative to a search warrant whenever there is probable cause to believe that evidence of contraband is inside a container. Under those circumstances the container should be secured until a search warrant can be obtained.
Government Exhibit ("GX") 2 to February 13, 1997 Hearing. Agent Meehan, however, seemed unsure of the content of this policy. See Hearing Transcript ("Tr") at 9. Rather, she testified that she conducted this inventory search in conformity with procedures she had been taught to follow during her training. Id. at 10. Specifically, Agent Meehan testified that "you look at and describe every item that is in the property that you are taking, and then in some way denote where each item is going if they are being separated." Id. When asked why this is done, Agent Meehan responded:
For several reasons: One, that there is no misunderstanding about what we received so that no one has questions down the line about something being added to the property or taken from the property; also, because different kinds of property are stored in different places at the FBI. Valuables go in one direction, guns go in a different direction, and drugs are kept in a separate vault. And, so you have to itemize everything. For safety reasons you have to know if you are dealing with anything explosive or otherwise hazardous. And, eventually, what you take is going to be returned to someone outside of the FBI; and, if it is evidence in a case or contraband, it doesn't get returned, so you have to know what you are dealing with before you return it.