Florida v. Wells/Concurrence Blackmun

by Harry Blackmun

Justice BLACKMUN, concurring in the judgment.

I agree with the Court that the judgment of the Supreme Court of Florida is to be affirmed. If our cases establish anything, it is that an individual police officer cannot be given complete discretion in choosing whether to search or to leave undisturbed containers and other items encountered during an inventory search. See Colorado v. Bertine, 479 U.S. 367, 374, n. 6, 107 S.Ct. 738, 742, n. 6, 93 L.Ed.2d 739 (1987); South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). Here, given the complete discretion Florida Highway Patrol troopers enjoyed to open or not to open closed containers, the evidence in question properly was suppressed. I do not join the majority opinion, however, because, instead of ending the case at that point, it continues with language, unnecessary on the facts of this case, concerning the extent to which a policeman, under the Fourth Amendment, may be given discretion in conducting an inventory search.

The majority disagrees with the Florida Supreme Court's statement that a police department must have a policy which "mandate[s] either that all containers will be opened during an inventory search, or that no containers will be opened." Ante, at 3. The majority concludes that the Fourth Amendment does not impose such an "all or nothing" requirement. With this much I agree. A State, for example, consistent with the Fourth Amendment, probably could adopt a policy which requires the opening of all containers that are not locked, or a policy which requires the opening of all containers over or under a certain size, even though these policies do not call for the opening of all or no containers. In other words, a State has the discretion to choose a scheme that lies somewhere between the extremes identified by the Florida Supreme Court.

It is an entirely different matter, however, to say, as this majority does, that an individual policeman may be afforded discretion in conducting an inventory search. The exercise of discretion by an individual officer, especially when it cannot be measured against objective, standard criteria, creates the potential for abuse of Fourth Amendment rights our earlier inventory-search cases were designed to guard against. Thus, when the majority states that 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 that it is permissible for a State "to allow the opening of closed containers whose contents officers determine they are unable to ascertain from examining the containers' exteriors," ante, at 4 (emphasis added), the majority is doing more than refuting the Florida Supreme Court's all-or-nothing approach; it is opining about a very different and important constitutional question not addressed by the state courts here and not raised by the circumstances of the case. Although the majority's statements on the issue perhaps are to be regarded as no more than dicta, they nonetheless are problematic inasmuch as they may be taken out of context or misinterpreted by policymakers and trial courts. Because, as noted above, the complete discretion afforded Florida policemen in this case renders the search at issue undeniably unconstitutional, I see no reason for the Court to say anything about precisely how much, if any, discretion an individual policeman constitutionally may exercise.

Notes