United States v. Ducker, 491 F.2d 1191; South Dakota v. Opperman, supra. The same is true where all occupants of the car are apprehended and none remain to take custody of the car (State v. Armstrong, 149 Mont. 470 ( 428 P.2d 611)), or where an unsuccessful attempt was made to locate the owner to obtain disposition instructions (Mackall v. State, 7 Md. App. 246 ( 255 A.2d 98)). We are cited to three cases which directly face the problem presented by this case.
See United States v. McCambridge, 551 F.2d 865, 870-71 (1st Cir. 1977); United States v. Davis, 496 F.2d 1026, 1031-32 (5th Cir. 1974); State v. Walker, 119 Ariz. 121, 579 P.2d 1091 (1978); State v. Floyd, 120 Ariz. 358, 586 P.2d 203 (Ariz. App 1978); State v. Undorf, 210 Kan. 1, 499 P.2d 1105 (1972); Mackall v. State, 7 Md. App. 246, 255 A.2d 98 (1969)(automobile not owned by defendant); State v. Vigil, 86 N.M. 388, 524 P.2d 1004 (1974); People v. Sullivan, 29 N.Y.2d 69, 272 N.E.2d 464, 323 N.Y.S.2d 945 (1971). Still others have ruled exactly opposite.
We do not believe Harris is absolute authority for the proposition that inventory searches are not subject to fourth amendment strictures. See: Lowe v. Caldwell (D.C. Ga. 1973), 367 F. Supp. 46; People v. Sullivan (1971), 29 N.Y.2d 69, 272 N.E.2d 464; State v. Wallen (1970), 185 Neb. 44, 173 N.W.2d 372; Mackall v. State (1969), 7 Md. App. 246, 255 A.2d 98. Courts subscribing to the opposite view generally hold that the intrusion is a "search," and then proceed to determine whether it was reasonable under the circumstances and hence not violative of constitutional limitations.
Here, the dead body was within plain view in the open trunk. See State v. Guinn, 301 A.2d 291 (Del. 1973), where Mozzetti, supra, was reconciled with other cases involving inventory searches of car trunks held to be proper. For other cases involving approval of inventory searches of automobile trunks, see United States v. Gerlach, 350 F. Supp. 180 (E.D. Mich. 1972); Plitko v. State, 11 Md. App. 35, 272 A.2d 669; Mackall v. State, 7 Md. App. 246, 255 A.2d 98; State v. Wallen, 185 Neb. 44, 173 N.W.2d 372; People v. Kern, 67 Misc. 2d 495, 324 N.Y.S.2d 442. The ruling granting Trusty's motion to suppress evidence is reversed.
Under the circumstances, Officer Brown was concerned about leaving the vehicle and therefore determined that he would have it towed from the scene. See Mackall v. State, 7 Md.App. 246, 251, 255 A.2d 98 (1969) (the making of inventory of an arrestee's property is "a bona fide attempt to safeguard the owner of the inventoried property against loss") (citing St. Clair v. State, 1 Md.App. 605, 619, 232 A.2d 565 (1967)). Officer Brown's decision to have the vehicle towed is consistent with a long line of Maryland cases that give police departments authority to take automobiles in custody, "in furtherance of their community caretaking functions.
We said in Dixon v. State, supra at 40, that "where the conduct of the police was inconsistent with its contention that the search was conducted for inventory purposes, the search was unlawful." Compare Mackall v. State, 7 Md. App. 246, 251, 255 A.2d 98 (1969) where the inventory of the contents of a suitcase in the trunk of an automobile was found to be a bona fide attempt to safeguard the owner's property; and Kleinbart v. State, 2 Md. App. 183, 199, 234 A.2d 288 (1967) where the search of a suitcase in the trunk of an automobile was found inconsistent with protective custody. We conclude that the detective in this case was not conducting a search of the appellant's jacket for the purposes of preparing an inventory to safeguard the appellant's property, but was actively seeking evidence of the commission of a crime or crimes.
Id. 428 U.S. at 370, n. 5, 96 S.Ct. at 3097, n. 5 (1976). See also Mackall v. State, 7 Md. App. 246, 255 A.2d 98 (1969); Kleinbart v. State, 2 Md. App. 183, 234 A.2d 288 (1967); St. Clair v. State, 1 Md. App. 605, 232 A.2d 565 (1967). In United States v. Chadwick, supra, the Supreme Court distinguished between automobiles and luggage when dealing with a search incident and automobile exception to the warrant requirement.
It has been held that the making of an inventory of the contents of a motor vehicle by police officers following a lawful arrest of the owner or driver may not constitute a search in the constitutional sense where the evidence clearly shows that the making of such inventory was not a subterfuge to conduct an exploratory search but instead was a bona fide attempt to safeguard the owner of the inventoried property against loss. See Mackall v. State, 7 Md. App. 246; Reagan v. State, 4 Md. App. 590; Kleinbart v. State, 2 Md. App. 183; St. Clair v. State, 1 Md. App. 605. We recognize in St. Clair that difficulty would be encountered in distinguishing a bona fide inventory from a mere subterfuge to search; we held, however, that the fact that abuses sometimes occur during the course of criminal investigations should not give a sinister coloration to procedures which are basically reasonable, it being for the trier of fact to see that no subterfuge is employed to undermine the constitutional protection afforded by the Fourth Amendment.