State v. Paynter

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. The Present Case The appellee, Daniel A. Paynter, was indicted in Prince George’s County on January 12, 2017 for the possession of marijuana with the intent to distribute and related offenses.

He moved to have the physical evidence suppressed because of an alleged violation of the Fourth Amendment. On March 24, 2017, the court granted the motion to suppress. The State’s Interlocutory Appeal The State filed a timely appeal on April 3, 2017. The appeal is authorized by Maryland Code, Courts and Judicial Proceedings Article, § 12-302(c)(4).

Pertinent are subsections (c)(4)(iii) and (iv): (iii) Before taking the appeal, the State shall certify to the court that the appeal is not taken for purposes of delay and that the evidence excluded or the property required to be returned is substantial proof of a material fact in the proceeding. The appeal shall be heard and the decision rendered within 120 days of the time that the record on appeal is filed in the appellate court. Otherwise, the decision of the trial court shall be final. (iv) Except in a homicide case, if the State appeals on the basis of this paragraph, and if on final appeal the decision of the trial court is affirmed, the charges against the defendant shall be dismissed in the case from which the appeal was taken.

In that case, the State may not prosecute the defendant on those specific charges or on any other related charges arising out of the same incident. (Emphasis supplied). The record was filed with this Court on June 8, 2017. Accordingly, our decision must be rendered no later than October 5, 2017.

We heard oral argument on September 5, 2017. The Facts In A Nutshell Other than being a routine traffic stop, the case against the appellee did not begin in any sense as a criminal investigation. On December 13, 2016, Officer Donald Rohsner was on routine traffic duty, using radar to look for speeding violations in the 800 block of Talbot Avenue in Laurel. He observed the appellee’s white 2014 Chevrolet Impala traveling at “a speed of 50” in a clearly marked “30 mile per hour zone.” He initiated a stop of the vehicle and relayed the information about the car to “police dispatch.” The appellee was the vehicle’s driver and sole occupant.

Officer Rohsner ran the appellee’s information through the Laurel Police Department’s communication system and was informed that the appellee’s driver’s license was “suspended.” When the officer further checked the registration status of the vehicle itself, he learned “that the tags were suspended through the Motor Vehicle Administration (M.V.A.) and that they were to be—there was a pick-up order on them, which means we must remove them and take them—put them into evidence so the vehicle did not have tags.” During the stop, Officer Rohsner received a further dispatch that “said 10-0, possibly armed, which is a caution code that he was possibly armed.” Based on that cautionary alert, “you would want to have a secondary officer for safety purposes.” Officer Nicholas Cahill responded to the traffic stop as that secondary officer. Officer Cahill, who also testified, confirmed that when the police encounter a “pick-up order,” they “have to take the tags off the vehicle and we return them to the M.V.A.” Officer Cahill went on to describe the written and established procedure of the Laurel Police Department with respect to inventories. He submitted the printed seven-page policy of the Department as State’s Exhibit 1. He further testified that he had received “field training” on the proper implementation of the inventory procedure.

He explained that the “purpose of an inventory search is to document all items in the vehicle, high value, anything you deem might be in the vehicle that needs to be inventoried.” His direct examination pointed out: Q. Okay. You indicated that [in] your inventory policy, you search for valuables. A. Correct, Q. What—what constitutes a valuable item in your— A. It could be a cell phone, hum, any debit cards, money left in the vehicle, clothing, tools. Q, Okay.

How do you acquire—which items you encounter during an inventory search would require safekeeping? A. We don’t take anything for safekeeping. We will usually just leave that valuable in the vehicle. Hum, and it will stay in the vehicle while it’s impounded.

There was no cross-examination. Officer Cahill testified that he would routinely search the glove compartment, the central console area, and the trunk because that is where valuables would likely be found. Officer Cahill went on to explain that the general orders of the Laurel Police Department governing inventories require the use of a motor vehicle tow report form. A copy of that tow report was offered and admitted as State’s Exhibit 2.

On that form, the inventory in this case listed “a blue iPhone in the center console” and “seven Mac computers in the trunk of the car.” In the course of making the inventory, the police also discovered and seized 51 grams of marijuana. An overview of the suppression hearing is significant. The appellee did not testify and offered neither witnesses nor evidence on his motion to suppress. With respect to the two officers called by the State, the appellee asked not a single question by way of cross-examination.

The appellee’s argument before the suppression hearing judge referred to Officer Rohsner’s body camera which recorded his inventory searching. It showed three pairs of tennis shoes, a spare tire, a jack, and jumper cables that were not listed as part of the inventory. The appellee’s argument was that the inventory was thereby flawed because it failed to include all items found in the car. 1 Logically implicit in such an argument is that such a subsequent failure to fill out the inventory listing with the requisite completeness would date back to invalidate the earlier discovery of the items to be inventoried. The search for the items, of course, was already fait accompli when the inventorying officer first puts pen to paper.

In extremely summary terms, however, the trial judge’s ruling bought the appellee’s argument: What the video makes clear is that what the police conducted is not an inventory, because an inventory lists everything that is and is not based on a subjective criteria as to what is quote valuable, unquote. The motion to suppress is granted as to the contents of the trunk. (Emphasis supplied). That is the sum total of the ruling.

That is the ultimate constitutional ruling that we shall examine de novo. The Supreme Court And Inventory Searches To keep a proper sense of precedential proportion, we note that we are dealing, of course, with Fourth Amendment constitutional law. The Maryland opinions, which the appellee seems to argue almost exclusively, are but implementary and/or descriptive of that Fourth Amendment law. They are not themselves the core law to be applied.

Whenever lawyers start cherry-picking phrases from random cases (as inevitably they must), it is always healthy to be able to go back to the original source instead of relying too heavily on subsequent glosses on that original source. It is always advisable to be cautious when using secondary sources. As a word is changed here or an emphasis is added there in making a gloss, and then a gloss upon a gloss, it is easy for the gloss to stray from the original message. If you want to know what South Dakota v. Opperman holds, therefore, read South Dakota v. Opperman.

For the law governing the inventorying by the police of the contents of an automobile about to be impounded, the original source is South Dakota v. Opperman, 428 U.S. 364 , 96 S.Ct. 3092 , 49 L.Ed.2d 1000 (1976). It was and it remains the Fourth Amendment pole star. In Opperman, as here, the police determined that the vehicle in question would be towed to the impounding lot because of a violation of the traffic (parking) law. It had been illegally parked for a number of hours in a restricted zone.

As in the present case, no crime other than the illegal parking itself was even suspected. The officer unlocked the car and, “using a standard inventory form pursuant to standard police procedures,” inventoried the contents of the automobile, “including the contents of the glove compartment which was unlocked.” 428 U.S. at 366 , 96 S.Ct. 3092 . In a plastic bag in the glove compartment, the police found and seized marijuana. Opperman’s motion to suppress the marijuana on the basis of a Fourth Amendment violation was denied and he was convicted of unlawful possession.

The Supreme Court of South Dakota, however, reversed the conviction, holding that there had been a Fourth Amendment violation. On that issue, the Supreme Court of the United States then reversed the Supreme Court of South Dakota. The opinion of the United States Supreme Court indisputably placed the phenomenon of the inventory “search” in an essentially non-investigative context, referring to it expressly as a “caretaking procedure.” When vehicles are impounded, local police departments generally follow a routine practice of securing and inventorying the automobiles’ contents. These procedures developed in response to three distinct needs: the protection of the owner’s property while it remains in police custody ...; the protection the police against claims or disputes over lost or stolen property ...; and the protection of the police from potential danger ....

The practice has been viewed as essential to respond to incidents of theft or vandalism. [[Image here]] These caretaking procedures have almost uniformly been upheld by the state courts, which by virtue of the localized nature of traffic regulation have had considerable occasion to deal with the issue. Applying the Fourth Amendment standard of “reasonableness,” the state courts have overwhelmingly concluded that, even if an inventory is characterized as a “search,” the intrusion is constitutionally permissible, 428 U.S. at 369-71 , 96 S.Ct. 3092 (emphasis supplied). This larger philosophical overview of inventorying is important in this case because the appellee, in attempting to erect a procedural obstacle course, is trivializing the phenomenon. The appellee essentially begins with the notion that police credibility is inherently suspect and that the officer must pass a series of procedural tests in order to prove his bona fides.

South Dakota v. Opperman itself gives off no such emanations. In holding that the inventory “search” in that case did not violate the Fourth Amendment, Opperman set out two basic requirements. The first is that the police must be lawfully entitled to impound or otherwise to exert custody over the vehicle. The Vermillion police were indisputably engaged in a caretaking search of a lawfully impounded automobile....

The inventory was conducted only after the car had been impounded for multiple parking violations. 428 U.S. at 375 , 96 S.Ct. 3092 (emphasis supplied). The second requirement is that the inventorying must be conducted pursuant to “standard police procedure.” [W]e conclude that in following standard police procedures, prevailing throughout the country and approved by the overwhelming majority of courts, the conduct of the police was not “unreasonable” under the Fourth Amendment. 428 U.S. at 376 , 96 S.Ct. 3092 (emphasis supplied). In Illinois v. Lafayette, 462 U.S. 640 , 103 S.Ct. 2605 , 77 L.Ed.2d 65 (1983), the inventory search before the Court was not of an automobile but of a shoulder bag carried by a defendant as he was arrested and subsequently brought into the station house. In inventorying the contents of the bag, the police discovered amphetamine pills inside a cigarette case.

The most important message of the Lafayette opinion is that in carrying out the inventory process, the police are not required to find and to use the “least intrusive manner.” Chief Justice Burger, writing for the Court, explained: The Illinois court held that the search of respondent’s shoulder bag was unreasonable because “preservation of the defendant’s property and protection of police from claims of lost or stolen property, ‘could have been achieved in a less intrusive manner.’[”] [[Image here]] Perhaps so, but the real question is not what “could have been achieved,” but whether the Fourth Amendment requires such steps; it is not our function to write a manual on administering routine, neutral procedures of the station-house. Our role is to assure against violations of the Constitution. The reasonableness of any particular governmental activity does not necessarily or invariably turn on the existence of alternative “less intrusive” means. 462 U.S. at 647 , 103 S.Ct. 2605 (emphasis supplied). The Court admonished that this is a practical matter not calling for too demanding a case of perfection.

Even if less intrusive means existed of protecting some particular types of property, it would be unreasonable to expect police officers in the everyday course of business to make fine and subtle distinctions in deciding which containers or items may be searched and which must be sealed as a unit. 462 U.S. at 648 , 103 S.Ct. 2605 (emphasis supplied). Eleven years after South Dakota v. Opperman, Colorado v. Bertine, 479 U.S. 367 , 107 S.Ct. 738 , 93 L.Ed.2d 739 (1987), reaffirmed Opperman’s basic attitude toward inventory searches. A Colorado police officer had arrested Bertine for driving his van under the influence of alcohol. Just before a tow truck arrived to take the van to an impounding lot, one of the officers, in accordance with local police procedure, inventoried the van’s contents.

The inventorying required opening a closed backpack which was found directly behind the front seat of the van. The backpack contained a mare’s nest of drugs and contraband. Inside the pack, the officer observed a nylon bag containing metal canisters. Opening the canisters, the officer discovered that they contained cocaine, methaqualone tablets, cocaine paraphernalia, and $700 in cash.

In an outside zippered pouch of the backpack, he also found $210 in cash in a sealed envelope. 479 U.S. at 369 , 107 S.Ct. 738 . Albeit noting that the inventory was performed in a “somewhat slipshod” manner, the trial court nonetheless ruled that the Fourth Amendment had not been violated. It nonetheless suppressed the evidence, ruling that the Colorado constitution had been violated, even if the United States Constitution had not been. The Supreme Court of Colorado affirmed the suppression, but on different grounds.

It based its decision on its belief that the federal Fourth Amendment had been violated. In reversing the Colorado holding, the United States Supreme Court’s opinion reaffirmed its earlier decision in Opperman. We found that inventory procedures serve to protect an owner’s property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger. In light of these strong governmental interests and the diminished expectation of privacy in an automobile, we upheld the search.

In reaching this decision, we observed that our cases accorded deference to police caretaking procedures designed to secure and protect vehicles and their contents within police custody. 479 U.S. at 372 , 107 S.Ct. 738 (emphasis supplied). One reason the Colorado Supreme Court had found the inventory unconstitutional was because the police had not explored with Bertine the possibility of making other arrangements for the safekeeping of his property. The Supreme Court of Colorado also expressed the view that the search in this case was unreasonable because Bertine’s van was towed to a secure, lighted facility and because Bertine himself could have been offered the opportunity to make other arrangements for the safekeeping of his property. 479 U.S. at 373 , 107 S.Ct. 738 (emphasis supplied). The appellee makes just such an argument in this case.

Chief Justice Rehnquist’s opinion to the contrary then emphasized: We conclude that here, as in Lafayette, reasonable police regulations relating to inventory procedures administered in good faith satisfy the Fourth Amendment, even though courts might as a matter of hindsight be able to devise equally reasonable rules requiring a different procedure. 479 U.S. at 374 , 107 S.Ct. 738 (emphasis supplied). The Supreme Court also rejected Bertine’s argument that the inventory was fatally flawed because the police had been left with too much discretion. Bertine finally argues that the inventory search of his van was unconstitutional because departmental regulations gave the police officers discretion to choose between impounding his van and parking and locking it in a public parking place. The Supreme Court of Colorado did not rely on this argument in reaching its conclusion, and we reject it.

Nothing in Opperman or Lafayette prohibits the exercise of police discretion 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. Here, the discretion afforded the Boulder police was exercised in light of standardized criteria, related to the feasibility and appropriateness of parking and locking a vehicle rather than impounding it. 479 U.S. at 375-76 , 107 S.Ct. 738 (emphasis supplied). In Colorado v. Bertine, 479 U.S. at 376 , 107 S.Ct. 738 , the concurring opinion of Justice Blackmun, joined by Justice Powell and Justice O’Connor, stressed the importance of conducting an inventory “only pursuant to standardized police procedures.” I join the Court’s opinion, but write separately to underscore the importance of having such inventories conducted only pursuant to standardized police procedures. 479 U.S. at 376 , 107 S.Ct. 738 (emphasis supplied). In Florida v. Wells, 495 U.S. 1 , 110 S.Ct. 1632 , 109 L.Ed.2d 1 (1990), the defendant was stopped by the Florida Highway Patrol for speeding and was then arrested for driving under the influence of alcohol.

His car was impounded. The preliminary inventory search turned up two marijuana cigarette butts in an ashtray and a locked suitcase in the trunk. The suitcase was forced open and was found to contain a garbage bag containing a considerable amount of marijuana. The Florida Court of Appeals and then the Supreme Court of Florida held that the opening of the locked suitcase, in the total absence of any standardized policy controlling such a search, was a violation of the Fourth Amendment.

The United States Supreme Court agreed and affirmed. Speaking through Chief Justice Rehnquist, the Supreme Court held that the violation occurred when, in the course of an otherwise proper inventory, the police opened a locked suitcase in the total absence of any policy with respect to closed containers. [T]he Florida Highway Patrol had no policy whatever with respect to the opening of closed containers encountered during an inventory search. We hold that absent such a policy, the instant search was not sufficiently regulated to satisfy the Fourth Amendment and that the marijuana which was found in the suitcase, therefore, was properly suppressed by the Supreme Court of Florida. 495 U.S. at 4-5 , 110 S.Ct. 1632 (emphasis supplied). The holding was not that the controlling policy must contain one of the binary commands that all locked containers may always be searched or that no locked containers may ever be searched.

There must be an express policy, however, and some guidelines must be provided to constrain police discrimination, A police officer may be allowed sufficient latitude to determine whether a particular container should or should not be opened in light of the nature of the search and characteristics of the container itself. Thus, while policies of opening all containers or of opening no containers are unquestionably permissible, it would be equally permissible, for example, to allow the opening of closed containers whose contents officers determine they are unable to ascertain from examining the containers’ exteriors. The allowance of the exercise of judgment based on concerns related to the purposes of an inventory search does not violate the Fourth Amendment. 495 U.S. at 4 , 110 S.Ct. 1632 (emphasis supplied). Where Are We Analytically?

The recurring theme of the Supreme Court, from South Dakota v. Opperman through Florida v. Wells, is that an inventory search is normally a non-investigatory community caretaking function. How, then, does such non-investigatory behavior fit into our more familiar framework of Fourth Amendment analysis? In terms of constitutional algebra, something discovered in the inventory search may trigger the Plain View Doctrine. Analytically, the initial non-investigatory inventory search would qualify as a prior valid intrusion, a critical element of the Plain View Doctrine.

When evidence is then spotted in plain view, with the requisite probable cause to believe that it is evidence, a Plain View Doctrine warrantless seizure is quintessential^ reasonable. Coolidge v. New Hampshire, 403 U.S. 443 , 91 S.Ct. 2022 , 29 L.Ed.2d 664 (1971); Arizona v. Hicks, 480 U.S. 321 , 107 S.Ct. 1149 , 94 L.Ed.2d 347 (1987). From the very beginning of this period of constitutional development, on the other hand, the recurring and persistent theme of the dissenting voices has been the fear that the police will use the ostensibly non-investigatory search as a subterfuge to make investigatory searches that would otherwise be forbidden. The critical question, therefore, becomes that of “Whether the prior intrusion that leads to the plain view of the evidence is, in truth, a prior VALID intrusion?” For the criminal defendant, the instinctive response is to cry “Subterfuge!” The tactical consequences of that instinct have been to come up with as many attacks as possible on the integrity of the inventory.

For inventory searches generally, we are called upon to determine whether the ostensibly prior valid intrusion was, indeed, VALID. In terms of careful and precise analysis, moreover, footnote 6 of the Opperman opinion, 428 U.S. at 870 n.6, 96 S.Ct. 3092 , also raises an interesting question with respect to the constitutional algebra. It carefully points out that an inventory “search,” in terms of analytic clarity, may not be a “search” within the contemplation of the Fourth Amendment at all. It may not be analytically precise, therefore, to call the inventory an exception to or an exemption from the warrant requirement, because the entire warrant requirement (along with all of its exceptions) relates to criminal investigations and depends upon probable cause.

The true inventory, by contrast, has nothing to do with either. It is probably more analytically correct, therefore, to think of the inventory as an instance of the “Fourth Amendment Inapplicable” rather than as an instance of the “Fourth Amendment Satisfied.” In Opperman, however, the petitioner did not pursue this line of reasoning and the Supreme Court was not required to pursue the matter further. The very insightful footnote, however, reads in its entirety: Given the benign noncriminal context of the intrusion, see Wyman v. James, 400 U.S. 309, 317 , 91 S.Ct. 381, 385 , 27 L.Ed.2d 408 (1971), some courts have concluded that an inventory does not constitute a search for Fourth Amendment purposes. See e. g., People v. Sullivan, supra, 29 N.Y.2d, [69] at 77, 323 N.Y.S.2d [945] at 952, 272 N.E.2d [464] at 469 [ (1971) ]; People v. Willis, 46 Mich.App. 436 , 208 N.W.2d 204 (1973); State v. Wallen, 185 Neb. 44, 49-50 , 173 N.W.2d 372, 376 , cert. denied, 399 U.S. 912 , 90 S.Ct. 2211 , 26 L.Ed.2d 568 (1970).

Other courts have expressed doubts as to whether the intrusion is classifiable as a search. State v. All, 17 N.C.App. 284, 286 , 193 S.E.2d 770, 772 , cert. denied, 414 U.S. 866 , 94 S.Ct. 51 , 38 L.Ed.2d 85 (1973). Petitioner, however, has expressly abandoned the contention that the inventory in this case is exempt from the Fourth Amendment standard of reasonableness. (Emphasis supplied).

The Maryland Reception Six months after South Dakota v. Opperman was decided, this Court recognized it and applied it in Duncan and Smith v. State, 34 Md.App. 267 , 366 A.2d 1058 (1976). We affirmed the denial of the defendant’s suppression motions on two grounds: 1) that the inventory search of an automobile was proper, and 2) that the defendants had abandoned the automobile in question. In affirming the decision of this Court in Duncan and Smith v. State, 281 Md. 247 , 378 A.2d 1108 (1977), the Court of Appeals did not agree with our decision that, on the facts of the case, the decision to inventory had been made in good faith, but it did agree that the defendants had abandoned the automobile and, therefore had no standing to object. The opinion of Judge Orth, however, fully accepted the new Supreme Court law.

Despite the narrowness of the Opperman holding, necessarily restricted to the facts of that case, there emerges from the Court’s opinion a doctrine, viable even though not fully developed, which permits as reasonable by Fourth Amendment standards, the inventory search of an automobile under certain conditions. 281 Md. at 258-59 , 378 A.2d 1108 (emphasis supplied). From the beginning, Maryland recognized that the two key requirements of that new doctrine are 1) that the vehicle be lawfully in police custody and 2) that the inventory be done “pursuant to standard police procedure.” We find the present stage of the doctrine to be that the police may, without regard to probable cause, and, thus, absent a warrant, constitutionally enter an automobile and unlocked compartments therein, and inventory and seize articles found, provided the vehicle had been otherwise legally taken into police custody and the inventorying was pursuant to a standard police procedure. 281 Md. at 259 , 378 A.2d 1108 (emphasis supplied). More recent decades have seen the appearance of three prominent Maryland appellate opinions on the subject of inventory searches: Briscoe v. State, 422 Md. 384 , 30 A.3d 870 (2011), from the Court of Appeals and both Sellman v. State, 152 Md.App. 1 , 828 A.2d 803 (2003), and Thompson v. State, 192 Md.App. 653 , 995 A.2d 1030 (2010), from this Court. In two of those cases, the police ran afoul of the qualifying requirement so heavily stressed by the Supreme Court in Florida v. Wells, to wit, that the inventory search be carried out pursuant to standardized policy.

In Briscoe, a minivan was initially stopped because its taillight was not illuminated. Briscoe, the driver, could not produce a driver’s license. A radio check revealed that his driver’s license had been suspended and that there was, moreover, an open warrant for his arrest. Accordingly, the police decided to have the minivan towed to the “City yard.” An inventory search of the minivan’s contents revealed a handgun in the glove compartment as well as several vials of cocaine near the steering wheel and in the center console.

Significantly, however, the police produced no evidence with respect to a standardized Police Department policy or procedure on the subject of inventorying. Neither did the State introduce any evidence of a Baltimore City Police Department policy or procedure regarding inventory searches. 422 Md. at 393 , 30 A.3d 870 . Judge (later Chief Judge) Barbera’s opinion for the Court of Appeals began its analysis by stressing again the two key requirements of a constitutional inventory. Pursuant to this well-defined exception to the warrant requirement, a search of a vehicle for the purpose of itemizing the property therein is constitutional, so long as the vehicle is in lawful police custody at the time of the search and the search is carried out pursuant to “standardized criteria or [an] established routine” established by the law enforcement agency. 422 Md. at 897 , 30 A.3d 870 (emphasis supplied).

Judge Barbera’s opinion pointed to the Supreme Court’s unequivocal message in Florida v. Wells: The Court agreed with Wells that the search of the locked suitcase could not be upheld as an inventory search, because “the record contained no evidence of any Highway Patrol policy on the opening of closed containers found during inventory searches.” [[Image here]] Consequently, the Court held that the search “was not sufficiently regulated to satisfy the Fourth Amendment^]” 422 Md. at 399 , 30 A.3d 870 (emphasis supplied). In the absence of any evidence whatsoever of a standardized police policy, the inventory search in Briscoe could not pass Fourth Amendment muster. The case at bar suffers from the same lack of evidence in the record of a Baltimore City Police Department policy concerning the opening of locked containers during an inventory search. In the absence of evidence that such a policy existed, it is impossible to distinguish a valid inventory search from a general investigatory search.

Id. (emphasis supplied). Precisely the same flaw had invalidated an earlier inventory search in Sellman v. State. The defendant there had his “hatchback” vehicle stopped on a highway “with blue front signal lights and a cracked windshield, both in violation of the Maryland Transportation Code.” 152 Md.App. at 6 , 828 A.2d 803 .

Sellman was the driver and sole occupant. He acknowledged to the traffic officer that his driver’s license had been suspended. He could not produce a registration card. A records check showed that the license had been suspended in 1992, revoked in 1993, and that it remained revoked.

The officer also learned that there was a “pickup order” for the car and, as in the present case, an order to secure the tags. The officer arrested Sellman and called for a tow truck. An inventory search of the vehicle revealed a red nylon bag in the hatchback area containing a handgun and a glassine bag containing 24.34 grams of marijuana. The trial court denied the motion to suppress the physical evidence.

Defense counsel acknowledged that there was justification for an inventory but pointed out that the State had failed to show any “general administrative procedure in that regard.” Judge Deborah Ey-ler’s opinion for the Court of Special Appeals thoroughly reviewed South Dakota v. Opperman, Illinois v. Lafayette, Colorado v. Bertine, and Florida v. Wells. Her opinion stressed the necessity for evidence of a standard established police policy and the fatal lack of it in the Sellman case itself. The Supreme Court cases make clear that to ensure that ulterior investigatory motives are not at play an inventory search must at a bare minimum be a search of lawfully detained property carried out by a police officer in accordance with standard policies established by the officer’s law enforcement agency. Without the existence of a standard policy, an officer’s actions in conducting the search are not sufficiently regulated to assure that the search is in furtherance of legitimate police caretaking functions, unrelated to the existence vel non of probable cause, and not in furtherance of the officer’s own investigatory motives.

In the case at bar, the State did not present any evidence of the existence of a standard inventory search policy. 152 Md.App. at 21 , 828 A.2d 803 (emphasis supplied). There not only must be such a policy. There must also be evidence of such a policy presented to the suppression hearing judge. Judge Eyler stressed the indispensability of such evidence.

While in argument the prosecutor made reference to Anne Arundel County’s having a policy that all vehicles subject to being towed are to be searched, and while such a policy may exist (and may even have been known by the trial judge to exist), we must base our decision on the evidence actually