Look for the Department of Justice to seek—and obtain—the Supreme Court’s review of today’s en banc Ninth Circuit ruling in United States v. Anderson. The legal issue in the case was whether the inventory search of the defendant Anderson’s impounded vehicle violated the Fourth Amendment. By a vote of 6 to 5, the Ninth Circuit held that it did. (The Ninth Circuit is unique in using a “limited en banc panel”—a subset of its full corps of 29 active judges—to decide en banc cases.)
The en banc panel consisted of six appointees of Democratic presidents and five appointees of Republican presidents, but the vote alignment in the case did not fully follow that pattern. In fact, Judge Danielle Forrest, a Trump appointee (confirmed under the name of Danielle Hunsaker), wrote the majority opinion. Among the judges joining Judge Daniel Bress’s dissent was Judge John Owens, an Obama appointee.
I mean no disrespect to Judge Forrest or to the other members of the majority in observing that in any case in which Judge Bress and Judge Owens reach the same result, I would bet that it is the right result.
I will very briefly outline what I see as the core of Judge Forrest’s 25-page majority opinion and Judge Bress’s 27-page dissent (which begins on page 38 of the slip opinion). There is a lot of back and forth between the opinions that I can’t summarize succinctly, so I encourage interested readers to read the opinions for themselves.
Judge Forrest: Inventory searches are reasonable under the Fourth Amendment only if they are motivated by administrative purposes, and not solely by investigatory purposes. The primary question is whether the deputies’ deviation from the governing inventory procedure indicates that they acted in bad faith or solely for investigative purposes. The only item that the deputies here recorded and safeguarded was the firearm used as evidence against Anderson. They did not inventory a speaker, tools, two pairs of sunglasses, a watch, cologne, and other miscellaneous items. The crime report indicates that the firearm and ammunition were seized and treated specifically as evidence of a crime—not as property held for safekeeping. Other circumstances surrounding the search, considered in the totality, also suggest that the deputies were not motivated to search Anderson’s truck for administrative purposes.
Judge Bress: The majority distorts the legal framework for inventory searches, contravenes decades of Supreme Court and circuit precedent, and turns hairsplitting distinctions into constitutional rules. Under circuit precedent, the failure to complete an inventory form does not invalidate an inventory search. Instead, there must be “something else” to establish bad faith. But the majority has effectively turned non-compliance with inventory search procedures into the test for bad faith. That contradicts long-settled law, including the Supreme Court’s seminal precedent on inventory searches in Colorado v. Bertine (1987).