me of her arrest. State v Osborn, 426 So.2d 323 (La App, 1983) (impoundment unreasonable where vehicle parked in shopping center lot); Granville v State, 348 So.2d 641 (Fla App, 1977) (improper impoundment where vehicle parked in friend's driveway and defendant was arrested at a safe distance from the vehicle); Morton v State, 452 So.2d 1361 (Ala Crim App, 1984) (impoundment unreasonable where vehicle parked in service station); Weed v Wainwright, 325 So.2d 44, 45 (Fla App, 1976) (impoundment improper where arrestee's vehicle parked in store parking lot); Dixon v State, 23 Md. App. 19, 38-39; 327 A.2d 516 (1974) (necessity for impounding vehicle not demonstrated where vehicle was in public parking lot at time of arrest); State v Slockbower, n 24 supra, pp 11-13 (impoundment improper since vehicle could have been safely locked at scene of arrest); Kelly v State, 607 P.2d 706, 708 (Okla Crim App, 1980) (impoundment improper where vehicle parked in parking lot of business establishment); State v Thirdgill, 46 Or. App. 595, 599-600; 613 P.2d 44 (1980) (impoundment improper where vehicle was in restaurant parking lot); Rodriguez v State, 641 S.W.2d 955, 958 (Tex Crim App, 1982) (impoundment improper where no showing vehicle was illegally parked in an alley). Similarly see United States v Pappas, 735 F.2d 1232, 1234 (CA 10, 1984) (improper impoundment where vehicle was parked in parking lot of a club).
se it “would have been easy prey for vandals” and “would have posed a safety threat”); see alsoCommonwealth v. Lugg, 84 Mass.App.Ct. 1127 (2013) (decision to impound a car with an open window legally parked along Revere Beach Boulevard reasonable because of the possibility of theft or vandalism); People v. Scigliano, 241 Cal.Rptr. 546, 54849 (Ct. App. 1987) (officer could impound a car with a missing windshield stopped in a restaurant parking lot because “there was no way to secure the vehicle” and personal valuables inside it were “visible and unprotected”); State v. Tully, 348 A.2d 603, 609 (Conn. 1974) (warrantless entry to retrieve for safekeeping a guitar from an unlocked vehicle parked in a vacant school parking lot reasonable in part because a missing vent window rendered it “incapable of being secured in its exposure to a genuine threat of vandalism”). But see State v. Thirdgill, 613 P.2d 44, 45-46 (Or. App. 1980) (without addressing the risk of vandalism or theft, finding impoundment unlawful where defendant's car with a broken-out window was parked in a restaurant parking lot).
Dist. Ct. App. 1975) (car left unattended after arrest insufficient reason to justify search); Dunkum v. State, 138 Ga. App. 321, 325 (1976) (police may not impound car not involved in drug deal and safely parked in commercial lot); Dixon v. State, 23 Md. App. 19, 38 (1974) (unlawful impoundment of car parked in lot in different location from arrest because there was no impediment to traffic or apparent danger to car); Lee v. State, 628 P.2d 1172, 1173 (Okla. 1981) (unlawful impoundment of car "in no way connected to the crime" and posed no traffic hazard); State v.Thirdgill, 46 Or. App. 595, 597 (1980) (police may not impound arrested individual's car parked in commercial lot because it was unrelated to crime, did not obstruct traffic, and lot owner did not request its removal). Here, the Subaru posed no public safety risk, and the record contains no evidence of threat of vandalism to justify impoundment.
In State v. Fleming, 63 Or. App. 661, 665 P.2d 1235 (1983), the court held that police officers could not, pursuant to a community caretaking function, lift a folded-down back seat of an automobile that they had stopped and moved at the defendant's request. See also State v. Thirdgill, 46 Or. App. 595, 613 P.2d 44 (1980). There is no generic "community caretaking function."
It seems clear from Opperman and cases that proceeded and followed it, that the right to an inventory search begins at the point where the police have a lawful right to impound the vehicle. Brown v. Superior Court, 119 Ariz. 205, 580 P.2d 343 (1978); State v. Boster, 217 Kan. 618, 539 P.2d 294 (1975); Wagner v. Commonwealth, 581 S.W.2d 352 (Ky. 1979); State v. McDaniel, 156 N.J. Super. 347, 383 A.2d 1174 (1978); State v. Thirdgill, 46 Or. App. 595, 613 P.2d 44 (1980); Annot. 48 A.L.R.3d 537, 551 (1973). This initial step must be taken otherwise there is no rationale for the inventory search since it is based on protection of the owner's property, as well as the police against claims that property has been lost or stolen from the vehicle, while it is in police custody.
The cases cited as supporting the last proposition (3 LaFave, supra at 87 n. 55), however, seem to be mainly cases where the defendant had lawfully parked in a lot, such as that of a shopping mall, restaurant, or night spot, prior to his arrest on an offense not related to the use of the vehicle, and was reasonably expected to be able to remove the vehicle in the near future. See, e.g., State v. Bertram, 18 Ariz. App. 579 (1972); Weed v. Wainwright, 325 So.2d 44 (Fla. Dist. Ct. App. 1975); Dunkum v. State, 138 Ga. App. 321 (1976); Kelly v. State, 607 P.2d 706 (Okla. Crim. App. 1980); State v. Thirdgill, 46 Or. App. 595 (1980); Riley v. State, 583 So.2d 1353 (Ala. Crim. App. 1991). But see United States v. Hall, 565 F.2d 917, 921 (5th Cir. 1978) (automobile parked late at night in lot of closed service station, occupants arrested for public drunkenness); Biggers v. State, 162 Ga. App. 163, 164-165 (1982) (automobile parked in church lot, both occupants arrested; vehicle had expired dealer's plate).
See State v. Apodaca, 85 Or. App. 128, 133, 735 P.2d 1264 (1987).See also United States v. Miller, 589 F.2d 1117, 1125 (1st Cir 1978), cert den 440 U.S. 958 (1979); State v. Perry, 298 Or. 21, 26, 688 P.2d 827 (1984); State v. Davis, supra, 295 Or at 238; State v. Newman, supra; State v. Okeke, 82 Or. App. 393, 728 P.2d 872 (1986), rev allowed 303 Or. 261 (1987); State v. Fleming, 63 Or. App. 661, 665 P.2d 1235 (1983); State v. Walle, supra, 52 Or App at 967; State v. Thirdgill, 46 Or. App. 595, 613 P.2d 44 (1980); State v. Jones, 45 Or. App. 617, 620, 608 P.2d 1220, rev den 289 Or. 337 (1980); State v. Frink, 42 Or. App. 171, 176, 600 P.2d 456 (1979); State v. Plant, 28 Or. App. 771, 773, 561 P.2d 647 (1977); Crauthers v. State, 727 P.2d 9 (Alaska App 1986); see also, 1 LaFave, Search and Seizure § 6.6(c) (2d ed 1987). The validity of a warrantless search is tested against a standard of reasonableness.
F.2d 1232, 1234 (10th Cir. 1984) (improper impoundment where car was parked in parking lot of a club); Weed v. Wainwright 325 So.2d 44, 45 (Fla.App. 1976) (impoundment improper where arrestee's car parked in store parking lot); Dunkum v. State, 138 Ga. App. 321, 325, 226 S.E.2d 133, 136 (1976) (impoundment improper where arrestee's automobile parked in the parking lot of an unused nightclub); State v. Boster, 217 Kan. 618, 626-27, 539 P.2d 294, 301 (1975) (no legal justification for impounding car where alternative to impoundment exists); Dixon v. State, 23 Md. App. 19, 38-39, 327 A.2d 516, 527 (1974) (necessity for impounding car not demonstrated where car was in public parking lot at time of arrest); State v. Slockbower, 79 N.J. 1, 11-13, 397 A.2d 1050, 1053-55 (1979) (impoundment improper since car could have been safely locked at scene of arrest); Kelly v. State, 607 P.2d 706, 708 (Okla.Crim. 1980) (impoundment improper where car parked in parking lot of business establishment); State v. Thirdgill, 46 Or. App. 595, 599-600, 613 P.2d 44, 46 (1980) (impoundment improper where car was in restaurant parking lot); Rodriguez v. State, 641 S.W.2d 955, 958 (Tex.App. 1982) (impoundment improper where no showing it was illegally parked in an alley). Because we find that the impoundment of Casteel's vehicle was unreasonable, the inventory search of the vehicle was unlawful and evidence obtained as a result thereof should have been suppressed.
Although the many jurisdictions do not use uniform language or identical tests when resolving the issue of whether the impoundment of a vehicle was proper, the weight of authority makes it clear that the circumstances of each case must show that the impoundment was reasonable and necessary. See also Dunkum v. State, 138 Ga. App. 321, 226 S.E.2d 133 (1976); City of Danville v. Dawson, 528 S.W.2d 687 (Ky.Cr.App. 1975); State v. Thirdgill, 46 Or. App. 595, 613 P.2d 44 (1980); and Rodriquez v. State, 641 S.W.2d 955 (Tex.App. 1982). In Jones, supra, the driver of the vehicle had run away, the passenger was incoherent, and the vehicle was blocking a private drive.
After a vehicle has been lawfully impounded, a warrantless inventory search of articles in plain view in the vehicle has been sustained. State v. Keller, 265 Or. 622, 510 P.2d 568 (1973); State v. Thirdgill, 46 Or. App. 595, 613 P.2d 44 (1980). The purpose of such a procedure is to protect the vehicle and the property in it and to safeguard the police from danger and from claims for lost possessions.