Anthony Bandiero
Attorney and Senior Legal Instructor, Blue to Gold Law Enforcement Training
A question from an officer in Idaho, and the fact pattern is a good one. Two drunk guys leave a bar, argue, and one gets out leaving his phone and wallet in the other guy’s car. The officer tracked the car to a driveway, saw the property in plain view, and used a lockout kit. The brass was not happy, and neither was the officer with what the brass said he should have done instead.
Hey guys, it’s Anthony Bandiero here, senior legal instructor with Blue to Gold Law Enforcement Training, bringing you another roadside chat from the studio. This one I’m laughing a little bit, because wait to hear the fact pattern. It’s a little interesting.
So I guess the gist of this question is, can you unlock a vehicle in order to retrieve mislaid or lost property?
What happened with the phone and the wallet?
All right, so let’s go through this fact pattern. It comes from an officer in Idaho.
Two drunk guys at a bar. One of the drunks gets in the car to leave, the other guy hops in the passenger seat to get a ride home. They get into an argument. So the passenger then leaves the car, and then realizes that he left his cell phone and wallet in the car.
Now this is lost or mislaid property. There is no evidence here at all that the driver intentionally took or stole this guy’s wallet and cell phone.
So the passenger calls the police and says, hey, can you help me try to recover my property? And the cops oblige. They go up to this guy’s house. They see the car in the driveway. The cop says it’s just your standard driveway in front of a two-car garage attached to the house. So I can picture that. Let’s imagine the car is right next to the garage.
They knock on the door, no answer. They try to call the guy, no answer. Now they can actually see in the car, in plain view, they can see the wallet and they can see the guy’s cell phone. They even call the number the guy gave, and guess what starts ringing inside the car.
The cop then used his lockout kit to unlock the car, retrieve the cell phone and the wallet, gave it back to the passenger, and we go from there.
Brass apparently is not too happy on this one. Brass said that the cop should have got a search warrant, and the brass is saying that the car should have been impounded out of the guy’s driveway, brought back to the police department, and then get the detectives to help. That’s part of the procedure. Get the detectives to write a warrant for the prosecutor and so forth.
And the officer is asking, what’s my feedback on all this that went down? It looks like the officer that used the lock kit got into a little bit of trouble on this one.
Who’s right, who’s wrong? In my opinion, both are not legally correct.
Does any exception let you unlock a car for lost property?
Let’s start with the lockout kit. That one’s pretty easy. There is no constitutional authority that I’m aware of that allows a cop to unlock a car to retrieve lost or mislaid property.
First of all, the motor vehicle exception doesn’t apply, because it’s not probable cause of a crime. So let’s get that out of the way.
The other one is community caretaking doesn’t apply, because community caretaking can apply for dangerous items, to secure those so nobody gets their hands on it. But this is a wallet and a phone. And then the other community caretaking exception is related to the inventory search, but we’re not lawfully impounding this vehicle, nor can we impound this vehicle, because the guy has done nothing wrong and the vehicle is not evidence.
Does it matter that the car was parked on the curtilage?
Another little zinger on this is, where is the car? The car is on this guy’s curtilage. Most courts are going to determine that the cops are messing with a guy’s car that is physically right now on curtilage.
But even if the car was on the street, the outcome is not different in my opinion. The cops cannot be forcibly opening people’s cars in order to grab a mislaid or lost cell phone and wallet.
Could you get a search warrant for it instead?
Now alternatively, tow the car and go get a search warrant. I don’t know, what would a judge give you a search warrant for? There’s no probable cause. A search warrant has to be based on probable cause. Is there a fair probability that evidence, fruits or instrumentalities of a crime are in that car? The answer is no.
What should the officer have told the caller?
So really what the cops in my opinion should have done here is told the passenger, hey, I’ve got good news for you and some bad news. The good news is your phone and your wallet are absolutely in that car. The bad news is we can’t help you. This is a civil issue.
The guy’s done nothing wrong. You left your property in this guy’s car and now you want it back. Go talk to him tomorrow. Hopefully you guys are on good terms. But if not, it’s a civil issue. You’re going to have to go to civil court and potentially sue him for taking your property, because you left it there and he’s not giving it back. That’s a civil issue.
So, man, what an interesting one. I can just imagine this guy jimmying the car and helping this guy out. The intention was good, my friends, the intention was good. But the execution was a little faulty. It was a little legally faulty. The cop should not have slim-jimmed that car under these circumstances. So I can understand the department’s heartburn over that one. That could cause some civil issues.
Don’t think for one second that when I was a cop I wasn’t making tons of mistakes. Okay? I’ve definitely made my fair share of mistakes. So I’m not making fun of anybody. But at the end of the day, legally, this is not defensible.
The short version
- “There is no constitutional authority that I’m aware of that allows a cop to unlock a car to retrieve lost or mislaid property.”
- The motor vehicle exception is out: “it’s not probable cause of a crime.”
- Community caretaking is out. It covers securing dangerous items, “but this is a wallet and a phone.” And the inventory branch needs a lawful impound, which you do not have here.
- “The guy has done nothing wrong and the vehicle is not evidence.”
- The car sitting on curtilage makes it worse, “but even if the car was on the street, the outcome is not different in my opinion.”
- The brass was wrong too. “What would a judge give you a search warrant for? There’s no probable cause.”
- The right answer is the hard one: “The bad news is we can’t help you. This is a civil issue.”
- “The intention was good, my friends. But the execution was a little faulty.”
Related from Blue to Gold
- Breaking a Car Window to Retrieve a Firearm
- Can Police Seize a Gun in Plain View in a Parked Car Under Community Caretaking?
- Vehicle Search on Curtilage
This article is an edited transcript of Roadside Chat Ep. #85. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
