Closing the Inventory Loophole: Developing a New Standard for Civilian Inventory Searches from the Military Rules of Evidence

32 Pages Posted: 1 Sep 2012

See all articles by Sharon G. Finegan

Sharon G. Finegan

South Texas College of Law Houston

Date Written: March 1, 2012

Abstract

Since the Supreme Court's 2009 decision in Arizona v. Gant, the inventory exception to the Fourth Amendment warrant requirement has taken on increased importance in police investigations. Gant imposed significant limitations on the State's authority to search a vehicle, yet police have avoided the constitutional restrictions stemming from the rule espoused in Gant through use of the inventory doctrine. This expansion of the use of the inventory exception directly undermines the rationale behind the doctrine: to allow police to conduct a suspicionless, administrative search for the purpose of safeguarding items taken into custody.

Currently, a majority of courts focus on the policies adopted by police departments in determining the legality of any given inventory search. Yet this focus does not adequately address the underlying rationale of an inventory search: allowing for suspicionless administrative searches but prohibiting searches that are conducted for investigatory purposes.

A far more effective way of safeguarding those constitutional protections exists in the military system of justice. The Military Rules of Evidence incorporate procedures for court-martial proceedings that ensure certain types of administrative searches are not conducted as a ruse to avoid constitutional protections. The procedures governing the admissibility of evidence obtained from military "inspections" effectively balance the administrative needs of the military and the privacy rights of the individual service member.

Adapting these procedures rule for use in determining the legality of inventory searches in the civilian justice system would ensure that constitutional protections are preserved and that suspicionless administrative searches are not used to circumvent those protections. By examining the purpose behind an inventory search and allowing defendants to meaningfully challenge such searches, this Rule would provide a better means of guaranteeing the constitutional rights espoused in the Fourth Amendment.

Suggested Citation

Finegan, Sharon G., Closing the Inventory Loophole: Developing a New Standard for Civilian Inventory Searches from the Military Rules of Evidence (March 1, 2012). George Mason Law Review, Vol. 20, No. 1, 2012, Available at SSRN: https://ssrn.com/abstract=2139594

Sharon G. Finegan (Contact Author)

South Texas College of Law Houston ( email )

1303 San Jacinto Street
Houston, TX 77002
United States

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