¶1(dissenting).
¶2Today the majority has created a new exception to the Fourth Amendment of the United States Constitution and Article I, Section 9 of the Constitution of this State.
¶3The record reveals that the appellant was involved in a one-car accident at nine o’clock on the evening of the offense. Swerving to avoid two boys on a bicycle, he collided with a telephone pole. His car was rendered inoperable and was lodged partly on and partly off the street.
¶4An ambulance arrived about five minutes later, around the same time that Houston Police Officers D. E. Logsdon and R. H. Thomas arrived to investigate the accident. After giving his name to the officers, the semiconscious appellant was taken by ambulance to a nearby hospital. Appellant was not under arrest or in custody, nor was there any probable cause to believe he had been involved in criminal activity.
¶5Preparatory to having appellant’s car towed, the officers conducted an inventory search of the car’s contents. They found two pairs of shp|s, a water pump, two cases of oil, and a box of papers. In the unopened glove compartment, they also found less than an ounce of marihuana, which formed the basis of this prosecution. Appellant did not consent to the search of his vehicle. There were no “fruits or instrumentalities” of a crime or contraband in plain view in the automobile. The only justification for the search advanced at the trial was that the policy of the Houston Police Department called for inventorying a vehicle prior to its being turned over to a private wrecking company to secure the owner’s personal effects and protect the officers from any liability in the event of their disappearance.
¶6There is no contention that the officers conducted the search for their own safety. The appellant did not request that the contents of his automobile be secured in any way, shape or form by the Houston Police Department. The automobile was not subject to forfeiture and, in fact, was in no way seized at all. The only question presented is whether the officers were justified in searching the car for inventory purposes. The only possible basis for this justification is whether the police needed to inventory the car in order to protect themselves from later civil liability.
¶7The majority bases its decision on the recent case of South Dakota v. Opperman, - U.S. -, 96 S.Ct. 3092, 50 L.Ed.2d *613-(1976), in which the Supreme Court of the United States discusses the validity of inventory searches. In that case, the defendant’s car had been impounded for multiple parking violations. After the vehicle was towed to the city impound lot, the police, following standard procedures, inventoried the contents of the car. In doing so they discovered marihuana in the glove compartment, for the possession of which the defendant was subsequently arrested. The Supreme Court upheld the validity of the police procedures, stating that such an inventory search was not an “unreasonable” search in violation of the Fourth Amendment. The Supreme Court stated that there is a distinction between automobiles and homes or offices in relation to the Fourth Amendment. This is due to the former’s inherent mobility which, of necessity, makes rigorous enforcement of the warrant requirement impossible. Coolidge v. New Hampshire, 403 U.S. 443, 459 — 460, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Furthermore, the expectation of privacy with respect to one’s automobile is significantly less than that relating to one’s home or office because the motor vehicle’s function is transportation and seldom serves as one’s residence or as the repository of personal effects. Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974).
¶8While the above reasoning by the Supreme Court lends further credence to its disposition of Opperman, the basis for its decision lies in the discussion of “community caretaking functions” and the rights and obligations of the police pursuant thereto:
“In the interest of public safety and as a part of what the Court has called ‘community caretaking functions,’ (citation) automobiles are frequently taken into police custody. Vehicle accidents present one such occasion. To permit the uninterrupted flow of traffic and in some circumstances to preserve evidence, disabled or damaged vehicles will often be removed from the highways or streets at the behest of police engaged solely in caretaking and traffic control activities. Police will also frequently remove and impound automobiles which violate parking'ordinances and which thereby jeopardize both the public safety and the efficient movement of vehicular traffic. The authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge.
“When vehicles are impounded, local police departments generally follow a routine practice of securing and inventorying the automobile’s contents. These procedures developed in response to three distinct needs: The protection of the owner’s property while it remains in police custody, (citation); the protection of the police against claims or disputes over lost or stolen property, (citation); and the protection of the police from potential danger, (citation). The practice has been viewed as essential to respond to incidents of theft or vandalism.” (Emphasis added.)
¶9In the case at bar, the appellant’s car was never impounded by the police. Furthermore, the police did not have custody of appellant’s car.
¶10At the motion to suppress, the police officer testified that appellant was taken to the hospital approximately three to five minutes after the officers arrived at the accident, and that a wrecker arrived and towed the car away approximately ten minutes after appellant left for the hospital.
¶11In light of the factual distinction present in the case at bar, South Dakota v. Opperman is inapplicable, as is Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), relied on by the Supreme Court in Opperman. In Cady, the police had reasonable grounds to believe a weapon might be in the car, and thus available to vandals. 413 U.S., at 436, 93 S.Ct. 2523. In the case at bar, the State has stipulated that “the station wagon was not searched because the officers believed or had reason to believe that the vehicle contained a dangerous instrument.”
¶12A recent Florida decision, decided after Opperman, puts the question of inventory search in the proper perspective. In Altman v. State, 335 So.2d 626 (Fla.App.1976), the defendant lost control of his automobile as a result of an accident following a high-speed chase by the police. After the arrest, two officers conducted an inventory search of the defendant’s car and found in excess of five grams of marihuana in the glove compartment. No search warrant was obtained and no claim was made that the defendant consented to the search. Nor was any contention made that the officers had probable cause to believe the defendant had contraband in the vehicle. Defendant’s motion to suppress was overruled.
¶13In reversing the trial court, the Florida Appellate Court held that in considering the validity vel non of an inventory search, it becomes essential to initially determine whether it is necessary for the police to conduct a search. They went on to state that a common pattern running through the cases they have reviewed is that the police must act in good faith and not use the inventory procedure as a subterfuge for a warrantless search of a vehicle. “A prime criterion to determine if the police have taken lawful custody of a motor vehicle is whether or not it is justifiable for the police, acting under routine police procedure, to become bailees of the vehicle.” Id., at 629. The court held that since it was stipulated that the defendant desired and had the ability to have his car removed by someone without the intervention of the police, the underlying necessity for police custody did not exist. The Florida Appellate Court then focused on Opperman:
“Our comment on the prerequisite of necessity for impoundment as the threshold to justify an inventory search is a timely caveat to law enforcement officers particularly in view of the recent opinion of the United States Supreme Court in South Dakota v. Opperman,-U.S.-, 96 S.Ct. 3092, 50 L.Ed.2d-, opinion filed July 6, 1976.”4
¶14I express no opinion as to when police contact with an individual’s automobile ■ *615could possibly subject the police to a later claim for lost or stolen property and thereby justify an inventory search by the police in order to protect themselves from such subsequent claim by the individual.
¶15I would hold that where the vehicle is not impounded by the police, where express custody of the vehicle is not given by the individual to the police, where the police do not assume custody by seizing the vehicle in the absence of the individual while performing “community caretaking functions,” and where the police are in proximity to the vehicle for such an extremely short period of time as they were in this case, there is no reason to create an exception to the requirements of the Fourth Amendment of the United States Constitution or Article I, Section 9 of the Constitution of this State. In such instances, if a search is conducted, the police should fulfill the warrant requirement or bring their actions within the carefully defined exceptions to this requirement.
¶16In this ease, the search conducted by the police was “unreasonable” within the meaning of the Fourth Amendment of the United States Constitution and Article I, Section 9 of the Constitution of this State.
¶17I respectfully dissent, and would reverse and remand the judgment of the trial court.
¶18. While the majority indicates that what occurred was not a “search” within the meaning of the Fourth Amendment, I feel that a seman-tical voyage at this point is unnecessary. When a glove compartment of an automobile has been opened and its contents itemized, it has been searched within the meaning of the
¶19Fourth Amendment notwithstanding the applicable descriptive terms one may find in Webster to apply to this intrusion into privacy.
¶20Furthermore, the following cases support the proposition that an inventory is a “search” within the meaning of the Fourth Amendment: U. S. v. Lawson, 355 F.Supp. 101 (D.C.S.D.), *612aff’d, 487 F.2d 468 (8th Cir.1973); Cabbler v. Superintendent, 374 F.Supp. 690 (D.C.Va. 1974); Boulet v. State, 109 Ariz. 433, 511 P.2d 168 (1973); Mozzetti v. Sup. Ct. of Sacramento County, 4 Cal.3d 699, 94 Cal.Rptr. 412, 484 P.2d 84 (1971); Gagnon v. State, 212 So.2d 337 (Fla.App.1968).
¶21The mere fact that the police officer conducting the search chooses to call it an inventory does not make his conduct something other than a search. State v. Jones, 122 N.J.Super. 585, 301 A.2d 185 (1973).
¶22. Notwithstanding the fact that this was the sole justification advanced at the trial, and should therefore be the isolated issue presented for appellate review, the majority bolsters its opinion by discussing the interest of the citizen in having his property, and not his privacy, protected and by stating, without explaining the basis for, the duty of the police to protect such property and degrade such privacy.
¶23Furthermore, the majority reasons that the police were not looking for evidence and that they should be commended for taking the initiative to invade the appellant’s privacy and protect his property. It has been held that regardless of the proffered benevolent purposes and euphemistic explication, an inventory search involves a thorough exploration by the police into private property of an individual, and that the police are not exempt from the constitutional requirements of the Fourth Amendment merely because they are not searching with the express purpose of finding evidence of crime. Mozzetti v. Sup. Ct. of Sacramento County, 4 Cal.3d 699, 94 Cal.Rptr. 412, 484 P.2d 84 (1971).
¶24. While the majority equates police control with police custody, they do so unmindful of the fact that this reasoning runs counter to the law of bailment and when carried to its logical extreme, reduces the Fourth Amendment to a bundle of words.
¶25Sometimes police officers, in uniform, guard crowded parking lots at football games, concerts, et cetera. They are assigned these duties in order to prevent vehicles from being burglarized or other crimes from taking place which frequently occur on crowded parking lots at night. While police certainly have control of the vehicles in the sense that they could order one towed away if it was haphazardly parked and blocking traffic or otherwise creating a hazard, they do not have custody because temporary possession has not been given, either expressly or impliedly, by the owners to the officers. In such situations, if the mere presence of “control” justifies inventory searches to protect the police from civil liability, then they should be given the right to inventory every car on the parking lot, under the reasoning adopted by the majority today, since the owners could later claim that the police, while guarding the lot, took something out of the cars.
¶26. For other cases which hold that the essential prerequisite to a valid inventory search is that police must have taken lawful custody of the vehicle in the first instance and when police custodial care is not necessary, the inventory search is unlawful, see, 48 A.L.R.3rd 537, 551.
¶27. Even so, I have doubts that such a procedure is necessary, as police derive no benefit from the performance of these caretaking functions, and their conduct is usually for the sole benefit of the owner of the car. “The nature of a particular bailment determines the standard of diligence imposed by law on a bailee in caring for the property entrusted to him and his liability for loss or injury. If the bailment is for the sole benefit of the bailor, the law requires of the bailee only slight diligence, and holds him answerable only for gross negligence.” 7 Tex. Jur.2d Rev. Part 2, Bailment, Section 24, p. 732 (and cases there cited). I further doubt that inventory procedures would have any effect in a subsequent suit for missing property. See, Szwajkowski, “The Aftermath of Cooper v. California,” 1968 University of Ill.L.Forum 401, at pages 407, 408; and Nelson, “Chimel v. California: A Potential Roadblock to Vehicle Searches,” 17 U.C.L.A.L.Rev. 626, at page 642. Locking the doors of the car would not only better protect the police from false claims, but would also preserve the individual’s constitutional rights. Mozzetti, supra.
¶28. In its opinion, the majority commits a graver error by impliedly reasoning that since the conduct of the police is not constitutionally proscribed, it is thereby constitutionally permitted. There was no showing by the State on appeal that this power to “inventory” is given the Houston Police Department by statute or municipal ordinance. The record reflects merely that the “policy” of the Houston Police Department requires that an inventory be made in such circumstances. This reasoning is repugnant to the fundamental principle in a free society that the police have only those powers given to them by statute. To say the police can act without a grant of power from the legislative branch is to say the police can give the power to act to themselves, which is characteristic of a police state.