State v. White

Becker, J.

(dissenting) — I respectfully dissent. My text consists of the following statements by the Washington Supreme Court:

*783We therefore hold that an officer may not examine the locked trunk of an impounded vehicle in the course of an inventory search absent a manifest necessity for conducting such a search.[5]

And:

[Office this court has decided an issue of state law, that interpretation is binding on all lower courts until it is overruled by'this court.[6]

In the present case, the officers examined the locked trunk of an impounded vehicle in the course of an inventory search, without showing a manifest necessity for doing so. Therefore, as the trial court properly held, Houser requires suppression. This court is without authority to hold otherwise.

The majority undertakes to avoid Houser by reading out of it the words "locked trunk”: "We decline to resolve this issue on semantics because it is clear that the focus of the Houser court’s reasoning was not whether the trunk was locked, but whether the potential for theft and false claims against the police department justified the intrusion into the defendant’s expectation of privacy in his car trunk.” Majority, at 779. The majority agrees that the manifest necessity requirement is not dicta and that lower courts are bound by it. Majority, at 782. Yet, by eliminating the focus on the locked trunk, the majority also reads out of Houser the manifest necessity requirement. Because Houser establishes manifest necessity as the precondition for searching a locked trunk, the undisputed fact of the locked trunk is an unavoidable part of our analysis. If it were unimportant, trial courts would never need to find a manifest necessity. Instead they would need only to perform their own balancing test.

Because an inventory search of an impounded automobile may occur in the absence of criminally suspicious *784conduct, the rules controlling such searches directly impact many citizens. This State’s highest court decided in Houser that the constitutionally based privacy interest of the citizen outweighed the government’s reasons for inspecting and cataloguing private property located in the locked trunks of impounded cars.7 The Court did not invite the lower courts to reweigh those interests, and until today the lower courts have not done so.

Debate as to the proper scope of inventory searches has been extensive and vigorous.8 The majority of state supreme courts have conformed their holdings to the Fourth Amendment as interpreted by the United States Supreme Court. Others, like the Washington State Supreme Court, have taken positions that are more protective of individual privacy, relying on their own state constitutions.9 The two dissenters in Houser raised the counterpoints and what-ifs typical of this debate, emphasizing the risks of theft and false claims in terms almost identical to this court’s opinion today. The Houser majority, concerned about the "possibility for abuse” inherent in unlimited inventory searches,10 simply disagreed that these concerns were of sufficient magnitude to overcome the privacy interest manifested by the individual’s decision to lock the trunk.11

The police in the present case followed a standard impound procedure, one that has been in effect for 20 years. The procedure directs the police to search a trunk whenever they can gain access by means of a key or a trunk release. The procedure therefore requires the very *785search that Houser prohibits.12 Either this standard procedure needs to be revised, or Houser does. Implicitly, the majority suggests it is Houser that is unsatisfactory. Even if that were so, the decision to revise its own clear holding belongs to the Supreme Court. This court’s effort , to distinguish Houser is a form of tinkering that will produce uneven results by creating two classes of privacy interests, one for drivers who have a trunk release button, and one for those who do not. The police will have to evaluate the quality of the trunk lock and the location of its release every time they impound a vehicle. In comparison, Houser is a simple, comprehensive and workable decision. In my view it lacks neither in logic nor common sense.

Houser’s prohibition against searching locked trunks absent manifest necessity is enforced by the Ninth Circuit, which recognizes that holding as the established law of this state. United States v. Johnson, 936 F.2d 1082 (9th Cir. 1991). We, too, are bound by Houser and our duty is to enforce it. The State did not attempt, either at the trial court or the appellate court, to establish a manifest necessity for examining the locked trunk. For our purposes that ends the inquiry.

I would affirm the superior court’s suppression order.

Reconsideration denied November 22, 1996.

Review granted at 131 Wn.2d 1020 (1997).

State v. Houser, 95 Wn.2d 143, 156, 622 P.2d 1218 (1980).

State v. Gore, 101 Wn.2d 481, 487, 681 P.2d 227 (1984).

Houser, 95 Wn.2d at 156.

See generally Emile F. Short, Annotation, Lawfulness of "Inventory Search’’ of Motor Vehicle Impounded by Police, 48 A.L.R.3d 537 (1973 & Supp. 1996).

See State v. Boland, 115 Wn.2d 571, 578, 800 P.2d 1112 (citing Houser as example of a holding under Wash. Const, art. I, § 7).

Houser, 95 Wn.2d at 155.

Houser, 95 Wn.2d at 155-56; and at 155 n.3 (noting skepticism that inventories are an effective means of discouraging false claims).

The police opened Houser’s locked trunk with a key obtained from the defendant. Houser, 95 Wn.2d at 147.