FILE
IN CLERKS OFFICE
Thisopini'onwas filed for record
at CZ~pp ctm on ' 1 20t3
STATE OF WASHINGTON, )
) No. 87104-3
Respondent, )
)
v. ) En Bane
)
LARRY DEAN TYLER, )
)
Petitioner. ) Filed MAY S0 2013
_____________________________)
MADSEN, C.J.-An officer stopped the defendant for a traffic violation and
pulled the car he was driving off a busy highway. When it turned out that the driver and
his passenger both had suspended drivers' licenses and alternate arrangements could not
be made, the officer arranged for a tow truck to move the car. In order to turn the vehicle
over to the towing company, the officer conducted an inventory search of the vehicle and
discovered methamphetamine during the search. The defendant was convicted of
unlawful possession of methamphetamine and driving while his license was suspended.
He appealed, arguing that the trial court abused its discretion when it denied his motion to
suppress the evidence on the ground the search was pretextual. He also argued that
because he did not consent to the search, it was unconstitutional. The Court of Appeals
affirmed his convictions.
We affirm the Court of Appeals. In particular, we conclude that under article I,
section 7 of the Washington State Constitution, law enforcement officers do not have to
obtain consent in order to conduct an inventory search of a lawfully impounded vehicle.
No. 87104-3
FACTS
On November 12, 2009, Jefferson County Deputy Sheriff Brett Anglin saw a car
exceeding the speed limit on the highway just west of the Hood Canal Bridge. When he
checked the license plate, he learned that the vehicle's owner was a woman whose
driver's license was suspended. He stopped the car for speeding and the driver, Larry
Dean Tyler, pulled onto the paved shoulder of the highway. Anglin testified he stopped
less than a foot from the fog line. As Deputy Anglin approached the car, he saw that both
the driver and the passenger were men. The passenger had been making furtive
movements and Anglin was concerned there might be a weapon in the car, but then it
appeared to him that the passenger was trying to hide what seemed to be a can of beer. It
turned out to be an alcoholic caffeinated beverage.
Anglin asked Tyler for identification and Tyler produced a Medicare card and
explained he had no valid driver's license. When he checked with dispatch, Anglin found
out that both men's drivers' licenses were suspended. The deputy arrested Mr. Tyler for
driving while his license was suspended, handcuffed him, and put him in the backseat of
the patrol car. Anglin had called for another officer to assist and this officer took the
passenger into custody based on outstanding warrants but subsequently released him
when uncertainty arose as to whether the warrants were extraditable.
Deputy Anglin asked for consent to search the car, but both men refused. Tyler
told Anglin that the owner of the car was his girl friend and she was unable to retrieve the
car because she was in jail in another county. The passenger was unable to drive since he
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No. 87104-3
did not have a valid driver's license. With Tyler's permission, the passenger used Tyler's
cell phone to try to find someone to drive the vehicle away. While he located someone to
come get him, he was not able to find a driver for the car.
Anglin testified that the car was stopped about one foot inside the fog line next to
a one-lane, congested part of the highway where the speed limit was 60 miles per hour,
about one quarter mile from the bridge. Traffic coming off the bridge has two lanes and
vehicles are accelerating and frequently passing each other. Close by is an intersection
where accidents frequently occur.
Because there was no one to drive the car from the scene, Deputy Anglin called a
private towing company after deciding to impound the car for roadway safety. He also
testified he impounded the car because the driver had a suspended license. When the tow
truck arrived about 30 minutes after Tyler was stopped, Anglin turned the car and the car
keys over to the tow truck driver.
While waiting for the tow truck to arrive, Anglin filled out a standard Washington
State Patrol tow form as he and the other officer conducted an inventory search of the
car's passenger compartment. Anglin testified this search was conducted in accord with
department policies to secure personal property and protect the department and the
towing company. During this search, the officers saw some stereo equipment that was
loose in the back seat, and when they looked at the equipment to record it Deputy Anglin
3
No. 87104-3
could see a clear plastic "baggie" underneath the driver's seat, clearly visible from the
backseat. The contents of the baggie field-tested positive for methamphetamine. 1
Mr. Tyler was charged with unlawful possession of methamphetamine, use of drug
paraphernalia, and third degree driving while his license was suspended or revoked. At a
CrR 3.6 hearing he moved to suppress the evidence that was obtained during the vehicle
search, arguing that the search was an unconstitutional pretextual search.
The court concluded that once the driver and passenger were removed from the
car, there was no reason for a general exploratory search. However, "[a]ny evidence of
using the impound as a pretext for a warrantless search is rebutted by the officer's offer to
let the passenger call for help." Clerk's Papers (CP) at 25 (Mem. Op. and Order on Mot.
to Suppress Evidence, filed Jan. 21, 2010). On January 29, 2010, Tyler moved for
reconsideration. He conceded that "the impound was reasonable," CP at 32, but argued
that Deputy Anglin could not conduct an inventory search once Tyler denied permission
to search the car. Then on February 3, 2010, Tyler moved to reopen the CrR 3.6 hearing
to permit examination of Deputy Anglin about an e-mail Anglin had written that was
produced after the CrR 3.6 hearing in response a defense public records request. Tyler
maintained that this e-mail showed that Anglin was predisposed to engage in pretextual
vehicle searches.
The court denied both motions. Following a stipulated facts bench trial, Tyler was
convicted of possession of methamphetamine and driving while his license was
1
Deputy Anglin also found a small closed container under the driver's seat. We do not address
the search of this container because Tyler was not charged with possession of its contents.
4
No. 87104-3
suspended or revoked in the third degree. He appealed, and the Court of Appeals
affirmed the convictions. State v. Tyler, 166 Wn. App. 202, 269 P.3d 379 (2012).
ANALYSIS
I.
Mr. Tyler maintains that the trial court abused its discretion when it denied his
motions for reconsideration and to reopen the suppression hearing. See Rivers v. Wash.
State Conf. of Mason Contractors, 145 Wn.2d 674,685,41 P.3d 1175 (2002) (decision
on motion for reconsideration is within trial court's exercise of discretion); State v.
Luvene, 127 Wn.2d 690, 711-12, 903 P.2d 960 (1995) (quoting State v. Mora Sanchez, 60
Wn. App. 687, 696, 806 P.2d 782 (1991)) (decision on motion to reopen a proceeding to
introduce additional evidence is within the trial court's discretion). Tyler argues that the
inventory search of the car was unconstitutional under article I, section 7 of the
Washington State Constitution, which provides that "[n]o person shall be disturbed in his
private affairs, or his home invaded, without authority of law." This provision affords
protection to privacy interests in vehicles and their contents. State v. Snapp, 174 Wn.2d
177, 187, 275 P.3d 289 (2012); State v. Afana, 169 Wn.2d 169, 176, 233 P.3d 879 (2010).
A valid warrant constitutes "authority of law" under article I, section 7. State v.
Valdez, 167 Wn.2d 761,771-72,224 P.3d 571 (2009). Warrantless searches ofvehicles
are per se unreasonable, subject to a few exceptions that are narrowly drawn. Snapp, 174
Wn.2d at 187-88. One of these exceptions is a valid inventory search, and this is the
exception that the State maintains justifies the search of the car that Tyler was driving.
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No. 87104-3
The burden of establishing that this exception applies is on the State. !d. at 188; State v.
Vrieling, 144 Wn.2d 489, 494, 28 P.3d 762 (2001).
II. Impoundment
A vehicle may be lawfully impounded ( 1) as evidence of a crime, when the police
have probable cause to believe the vehicle has been stolen or used in the commission of a
felony offense; (2) under the "community caretaking function" if (a) the vehicle must be
moved because it has been abandoned, impedes traffic, or otherwise threatens public
safety or if there is a threat to the vehicle itself and its contents of vandalism or theft and
(b) the defendant, the defendant's spouse, or friends are not available to move the
vehicle; and (3) in the course of enforcing traffic regulations if the driver committed a
traffic offense for which the legislature has expressly authorized impoundment. State v.
Williams, 102 Wn.2d 733, 742-43, 689 P.2d 1065 (1984) (citing State v. Simpson, 95
Wn.2d 170,189,622 P.2d 1199 (1980)).
However, if there is no probable cause to seize the vehicle and a reasonable
alternative to impoundment exists, then it is unreasonable to impound a citizen's vehicle.
State v. Houser, 95 Wn.2d 143, 153,622 P.2d 1218 (1980); State v. Hill, 68 Wn. App.
300, 305, 306, 842 P.2d 996 (1993) (even when authorized by statute "impoundment
must nonetheless be reasonable under the circumstances to comport with constitutional
guaranties"; "in Washington, impoundment is inappropriate when reasonable alternatives
exist"); State v. Bales, 15 Wn. App. 834, 837, 552 P.2d 688 (1976); see In re
Impoundment of Chevrolet Truck, 148 Wn.2d 145, 151 n.4, 60 P.3d 53 (2002). The
6
No. 87104-3
police officer does not have to exhaust all possible alternatives, but must consider
reasonable alternatives. State v. Coss, 87 Wn. App. 891, 899, 943 P.2d 1126 (1997).
Reasonableness of an impoundment must be assessed in light of the facts of each case.
!d. (citing State v. Greenway, 15 Wn. App. 216, 219, 547 P.2d 1231 (1976)). However,
facts subsequent to impoundment do not bear on whether the impoundment was
reasonable. Impoundment of Chevrolet Truck, 148 Wn.2d at 150 n.3.
The Court of Appeals concluded that Mr. Tyler conceded that the impoundment of
the car was reasonable. Tyler, 166 Wn. App. at 209, 213, 215. That concession occurred
before Tyler received a copy of the e-mail that Deputy Anglin wrote and which formed
the basis for his motion to reopen the suppression hearing. Tyler obtained the copy
through a public records request and we accept for present purposes that he would not
have made the concession after receiving it. Thus, unlike the Court of Appeals, we do
not proceed on the basis that Tyler concedes reasonableness.
According to Deputy Anglin, he impounded the car because it posed a safety
hazard, there was no one available to drive it away, and Tyler's license was suspended.
If not impounded, the vehicle would have been left as an unattended vehicle
creating a public safety hazard. It was parked very close to a very busy, congested single
lane section of the highway, where traffic was traveling at 60 miles per hour. The
community caretaking function is plainly implicated. In addition, under RCW
46.55.113(1), "summary" impoundment is authorized when the driver of the vehicle is
arrested for driving while his license is suspended. Under RCW 46.55.113(2)(b) and (d),
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No. 87104-3
impoundment is authorized when an officer finds a vehicle unattended on the highway
where it jeopardizes public safety or when an officer arrests the driver and takes him into
custody.
Deputy Anglin explored alternatives. The vehicle owner could not drive the car
because she was incarcerated and apparently also had a suspended license. She was not
available to assist. The passenger did not have a valid license, and after Anglin asked
Mr. Tyler to loan his cell phone to the passenger to attempt to locate a driver to retrieve
the car, the effort was unsuccessful. Anglin testified that if someone had been found who
could have retrieved the car within about 30 minutes, he would not have impounded the
car. Although Tyler says that Anglin did not ask him whether there was a person who
could retrieve the car, Anglin testified that Tyler deferred the task of trying to find a
driver to his passenger.
We conclude the trial court correctly determined that the impound was proper.
The vehicle threatened public safety if left where it was. In addition, Tyler had been
arrested for, among other things, driving with a suspended license. Anglin explored
reasonable alternatives to impoundment. 2
III. Inventory Search
Inventory searches have long been recognized as a practical necessity. State v.
Gluck, 83 Wn.2d 424, 428, 518 P.2d 703 (1974) (citing State v. Montague, 73 Wn.2d
381, 438 P.2d 571 (1968); State v. Olsen, 43 Wn.2d 726, 263 P.2d 824 (1953)). A
2
As explained below, Tyler has not established that the trial court abused its discretion when it
denied his motions for suppression, reconsideration, and to reopen the suppression hearing, and
rejecting his claim that the impoundment/inventory search was pretextual.
8
No. 87104-3
noninvestigatory inventory search of a vehicle may be conducted in good faith after it is
lawfully impounded. Houser, 95 Wn.2d at 154. The requirement that an inventory
search be conducted in good faith is a limitation that precludes an inventory search as a
pretext for an investigatory search. 1d. at 155; Montague, 73 Wn.2d at 385 ("this court"
would not "have any hesitancy in suppressing evidence of crime found during the taking
of the inventory, if we found that ... impoundment of the vehicle was resorted to as a
device and pretext for making a general exploratory search of the car without a search
warrant").
Warrantless inventory searches are permissible because they (1) protect the
vehicle owner's (or occupants') property, (2) protect law enforcement agencies/officers
and temporary storage bailees from false claims of theft, and (3) protect police officers
and the public from potential danger. State v. White, 135 Wn.2d 761, 769-70, 958 P.2d
982 (1998); Houser, 95 Wn.2d at 154; Gluck, 83 Wn.2d at 428. An inventory search
must be restricted to the areas necessary to fulfill the purpose of the search. Houser, 95
Wn.2d at 154. For example, to protect against the risk of loss or damage to property in
the vehicle, the search "should be limited to protecting against substantial risks to
property in the vehicle and not enlarged on the basis of remote risks." !d. at 155.
A. Pretext
1. Motion to Suppress
Mr. Tyler contends that the search in this case was pretextual. He first argued
pretext when he moved to suppress the evidence against him. In denying the motion to
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No. 87104-3
suppress, the court explained that any evidence of pretext was "rebutted" by Deputy
Anglin's "offer to let the passenger call for help, once he knew the owner was in jail and
not available to assist to retrieve her vehicle." CP at 25. The court said that the arresting
officer had compelling reasons to impound the vehicle, and once this occurred, it was
"incumbent upon him to inventory its content before turning it over to the tow truck
driver." ld.
Initially, Mr. Tyler's briefing intertwines his argument of pretext with his
argument that consent to search must be obtained from the owner, the owner's spouse, or
the driver before an inventory search may occur. We address the latter issue of consent
below and conclude that Deputy Anglin was not required to obtain Mr. Tyler's consent
before conducting an inventory search. We therefore do not accept Tyler's invitation to
analyze consent and pretext as a composite, and instead consider consent only insofar as
it is factually implicated here because Deputy Anglin asked if Tyler would consent to a
search, which Tyler refused to do.
The trial court did not abuse its discretion when it denied the motion to suppress.
The record supports the officer's decision to impound. The vehicle could not safely be
left where it was because it posed a considerable hazard to public safety. Alternatives to
impoundment were sought but not found. When Anglin learned the owner could not
retrieve the vehicle and the passenger could not drive it, he asked Tyler to lend his cell
phone to the passenger so the passenger could try to find someone to retrieve the vehicle.
10
No. 87104-3
His willingness to permit the vehicle to be removed from the scene cuts strongly against
pretext.
Once Anglin determined impoundment was the only reasonable course left, he
followed all appropriate steps for impounding the vehicle. Among these steps was the
necessity to provide for the vehicle to be towed to a safe location. Anglin called the
private towing company that was next on the rotation for such calls. Under state law,
"for all vehicle impounds after June 30, 2001," "[a]lllaw enforcement agencies must
use" "a uniform impound authorization and inventory form" that the Washington State
Patrol has provided by rule, and by July 1, 2003, these agencies must also adopt "uniform
impound procedures" that the state patrol has developed. RCW 46.55.075. In accord
with the statutory directive, Deputy Anglin filled out the standardized Washington State
Patrol form provided by rule, "Authorization to Tow/Impound and Inventory Record."
CP at 56 (capitalization omitted). This form required entry of the vehicle's mileage,
license plate number, YIN (vehicle identification number), make and model, and style,
and whether there was any damage to the exterior of the vehicle. In addition, the form
requires that the officer list items found in the vehicle. Anglin filled this form out while
assisted by another officer. There were three amplifiers and one speaker in the backseat
of the car, and the need to record these items led Anglin to where he could see the
methamphetamine evidence clearly in view.
As mentioned, before conducting the inventory search, Anglin asked both Tyler
and the passenger if they consented to a search. Both denied consent. Anglin was not
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No. 87104-3
required to obtain consent from Tyler, but the briefing before us indicates that requesting
consent to search is frequent, and nearly standard, for many law enforcement agencies
and officers.
Tyler maintains, though, that Deputy Anglin testified to his "understanding of
inventory consent searches," and Tyler says this testimony reveals "the type of general
exploratory search that is conducted to obtain evidence." Suppl. Br. ofPet'r at 18. This
mischaracterizes the testimony. Anglin was testifying about the scope of a search that
can be conducted when consent is given; nothing suggests that he understood he was
addressing an "inventory consent search." As an experienced officer, 3 Anglin would
have been familiar with the consent exception to the warrant requirement and would have
readily testified about the scope of a search pursuant to consent when asked about a
consent search (he was not asked about an "inventory consent" search).
2. Motion to Reopen the Suppression Hearing
Tyler moved to reopen the suppression hearing to introduce evidence of an e-mail
that Deputy Anglin wrote that Tyler contends supports his claim that the search was
pretextual. Evidently Tyler obtained this e-mail between the date he moved for
reconsideration of his motion to suppress and the date of his motion to reopen. The trial
court denied this motion and Tyler's motion for reconsideration in the same ruling. The
Court of Appeals affirmed this ruling, finding no abuse of discretion.
The subject line of the e-mail states: "RE: Search incident to arrest" and Anglin
sent it to other sheriffs department personnel in an attempt to persuade them that he
3
He had 10 years' experience.
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No. 87104-3
should be trained as a K-9 officer. CP at 36. Six paragraphs of the e-mail address
reasons why another K-9 unit would be useful, practicalities of costs and other burdens
involved in training for and maintaining a second unit, and ways to mitigate these
problems.
The first paragraph, Tyler contends, shows that Deputy Anglin was predisposed to
conduct pretextual inventory searches in order to circumvent the decision in Arizona v.
Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009). 4 This paragraph contains
an apparent reference to Gant:
This unfortunate ruling hinders our ability to continue the efforts that have
been enforce [sic] for some time. The obvious way to circumvent this is
impounding the vehicle and performing an inventory search. The problem
with this is that we must afford the person the chance to contact someone
else and determine if it is safely off of the roadway or not. It also obviously
limits what we can search as well. The other way around this case and that
is [sic] the use of a K-9.
CP at 36. Tyler's pretext theory rests on the idea that an inventory search can be
substituted for the search incident to arrest search that was allowed prior to Gant. 5
4
Gant contains two principal holdings under the Fourth Amendment to the United States
Constitution, both involving the search incident to arrest exception to the Fourth Amendment
warrant requirement. The first is that a warrantless search of a vehicle incident to arrest of a
recent occupant is authorized only when the arrestee is unsecured and within reaching distance of
the passenger compartment of the vehicle at the time of the search. Gant, 556 U.S. at 344.
Second, "a search incident to a lawful arrest" is justified "when it is 'reasonable to believe
evidence relevant to the crime of arrest might be found in the vehicle."' !d. at 343 (quoting
Thornton v. United States, 541 U.S. 615, 632, 124 S. Ct. 2127, 158 L. Ed. 2d 905 (2004) (Scalia,
J., concurring)). In Gant, the United States Supreme Court rejected the widely applied rule that a
vehicle search incident to arrest was constitutional when conducted contemporaneously with the
arrest ofthe occupant, regardless of whether the arrestee had been physically removed from the
vicinity of the vehicle's passenger compartment.
5
Gant does not alter the analysis applicable under other recognized exceptions to the warrant
requirement. Id. at 351(when the "justifications" for a search incident to arrest "are absent, a
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No. 87104-3
In denying the motions for reconsideration and to reopen, the trial court explained
that it had determined the impound was reasonable and then said that once the
impoundment occurred Anglin had no alternative but to conduct an inventory search to
protect himself, his department, and the tow company from possible future claims. The
court said that "to do an impound without doing an inventory would be inappropriate, if
not foolish." CP at 41. The trial court also said that the impound occurred before Gant
was filed. But as Mr. Tyler correctly says, the impound in fact occurred months after
Gant was filed. 6 Thus, the second reason the court gave is incorrect.
However, despite this error, denying the motion to reopen is sufficiently justified
by the first reason the court gave, as the Court of Appeals held. State law required that
Anglin list the inventory of the vehicle before turning it over to the private towing
company. In addition, Anglin testified that cataloguing the contents is done to protect the
contents and to protect the sheriffs office and tow company from accusations of theft.
He also testified that sheriffs office policies required him to conduct an inventory search
once a vehicle was impounded; cataloguing the contents of the vehicle was "standard"
and done "every time" a vehicle was impounded. Verbatim Report of Proceedings at 22.
Although he testified that he was unaware of any written policies, he testified that he had
been trained in the standards he used and these standards had remained the same for the
10 years he had been with the department.
search of an arrestee's vehicle will be unreasonable unless police obtain a warrant or show that
another exception to the warrant requirement applies").
6
The trial court's mistake evidently occurred because the State erroneously stated in its response
to the motion to reopen that the offenses were committed in February 2009, prior to the Gant
decision, when they actually were committed in November.
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No. 87104-3
The point of the e-mail was not to try to circumvent Gant or encourage the
department to disobey the law (or express his own intentions to do so), but to try to
convince the sheriffs department to send Anglin for K-9 training. The first paragraph of
the e-mail does not say what Tyler urges in any event. The paragraph actually explains
that inventory searches themselves are more restrictive than the searches possible under
the search incident to arrest searches that were permissible prior to Gant. Anglin says in
the first paragraph that an inventory search will require the officer to explore whether
someone other than the driver can move the vehicle and that the scope of the search is
more restrictive (closed containers and trunks cannot be searched). Thus, contrary to
Tyler's apparent claim, Anglin recognized that a vehicle search cannot simply be
substituted for a search incident to arrest as it existed prior to Gant.
The Court of Appeals properly concluded that the trial court did not abuse its
discretion in denying the motion to reopen.
We hold that the Court of Appeals correctly held that the trial court did not abuse
its discretion in denying the motion to reopen the suppression hearing.
B. Consent to Search
Tyler argues that law enforcement officers must obtain the express consent of the
vehicle's owner or the owner's spouse or, if the owners are not available, the driver
before conducting an inventory search. He maintains the inventory search here was
unlawful because it occurred after he denied consent and the officers did not attempt to
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No. 87104-3
obtain the owner's consent. The Court of Appeals held that consent is not a requirement
for an inventory search. We agree.
Consent is recognized as an independent basis for a warrantless search, see, e.g.,
State v. Hendrickson, 129 Wn.2d 61, 72,917 P.2d 563 (1996), and thus, if accepted,
Tyler's argument would to a significant extent nullify the inventory exception to the
warrant requirement where searches of impounded vehicles are concerned.
As explained, inventory searches are limited searches for limited purposes.
Houser, 95 Wn.2d at 153. When conditions justify a reasonable inventory search, in
good faith and without pretext, the officer's purpose is unrelated to discovering
contraband or evidence of criminal activity. Rather, the officer is concerned with
securing the vehicle and property within the vehicle. For this reason, under article I,
section 7, as under the Fourth Amendment, the "criteria governing the propriety of
inventory searches are largely unrelated to the justifications for other exceptions to the
warrant requirement." Houser, 95 Wn.2d at 154 (citing South Dakota v. Opperman, 428
U.S. 364, 370 n.5, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976); United States v. Bloomfield,
594 F.2d 1200 (8th Cir. 1979)); see White, 135 Wn.2d at 767 (Houser sets forth an article
I, section 7 analysis). We are concerned with whether, under article I, section 7, the
purposes and scope of an otherwise valid inventory search justify a search in the absence
of consent.
Initially, we address Tyler's overall claim that citizens' privacy interests are
inadequately protected under current law. We do not agree with this sweeping statement.
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No. 87104-3
The vehicle search is a limited search, as noted, and unchecked searches are not
permitted. An inventory cannot occur if there is no lawful basis for impounding the
vehicle; officers are not free to impound just any vehicle parked on the street or any
vehicle they stop for traffic infractions. 7 As explained, and generally speaking, officers
must also consider reasonable alternatives to impoundment, and if they fail to do so, any
subsequent search may be found unlawful.
Private interests are also protected because of the limited scope of permissible
inventory search. An inventory search is permitted only to the extent necessary to
achieve its purposes. Houser, 95 Wn.2d at 155. Searches of locked trunks and locked
containers is prohibited under the vehicle inventory exception because privacy interests
exhibited by placement of any property in such containers and in trunks outweigh the
need to inventory the contents to protect the property or protect against false claims of
theft. White, 135 Wn.2d at 766-67. Indeed, under article I, section 7, the officer must
7
The Court of Appeals listed some of the reasons that justify impoundment:
"Reasonable cause for impoundment may, for example, include the necessity for
removing (1) an unattended-to car illegally parked or otherwise illegally
obstructing traffic; (2) an unattended-to car from the scene of an accident when
the driver is physically or mentally incapable of deciding upon steps to be taken to
deal with his property, as in the case of the intoxicated, mentally incapacitated or
seriously injured driver; (3) a car that has been stolen or used in the commission
of a crime when its retention as evidence is necessary; (4) an abandoned car; (5) a
car so mechanically defective as to be a menace to others using the public
highway;· (6) a car impoundable pursuant to ordinance or statute which provides
therefor as in the case of forfeiture."
Bales, 15 Wn. App. at 835-36 (quoting State v. Singleton, 9 Wn. App. 327, 332-33, 511 P.2d
1396 (1973)).
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No. 87104-3
obtain permission to search the locked trunk or a locked container. 8 Houser, 95 Wn.2d at
156; see White, 135 Wn.2d at 771. The only exception is where manifest necessity
exists. White, 135 Wn.2d at 772; see, e.g., State v. Ferguson, 131 Wn. App. 694, 703-04,
128 P.3d 1271 (2006) (presence of chemical fumes indicated likelihood that highly
combustible materials were being transported in the vehicle's trunk and presented
manifest necessity for search).
Because of the privacy interests at stake, pretextual searches are prohibited, even if
the search would otherwise be permissible under the inventory exception. But consent is
not necessary to protect from pretextual searches. Indeed, trial courts are better
positioned to determine whether a search was pretextual, which is sometimes a difficult a
determination. Montague, 73 Wn.2d at 3 89. In addition, privacy interests in contents of
abandoned vehicles would not be protected by a consent requirement such as Tyler
proposes.
In addition to our conclusion that privacy interests are protected under current law,
we believe that the purposes of the inventory search could in fact be impeded by a rule
requiring consent before a vehicle inventory search can occur. These purposes are to
protect private property in unlocked areas of the vehicle, prevent false claims against law
enforcement agencies and others, and ensure the safety of law enforcement officers and
others from dangerous items located in vehicles.
8
Given modern vehicle design, there may be a question as to when a trunk is locked if it can be
accessed from the interior of the vehicle. However, that question is not presented here.
Moreover, no question is presented regarding locked containers.
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No. 87104-3
The rule that Tyler proposes could not be applied when police impound abandoned
vehicles and the owner is not available. RCW 46.55.085 requires impoundment of
abandoned vehicles left within a highway right-of-way. Under RCW 46.55.113 police
may impound a vehicle that blocks or obstructs a roadway. The owner may not be
available or locatable within a reasonable time, and using a telephone to attempt to
contact an owner is problematic because the identity of the person on the other end of the
call cannot be confirmed. Impounding the vehicle without inventorying its contents
could expose the property within to damage or theft, impeding the goal of protecting
property in an impounded vehicle.
Protection against false claims of theft may be hampered. Although we noted in
White, 135 Wn.2d at 770 n.9, that police become involuntary bailees when they impound
a vehicle, and therefore they have a duty of slight care for purposes of false claims of
theft, inventory searches nevertheless protect them from false claims alleging they have
failed to meet even this standard. 9
In addition, the lesser duty of care does not apply in the cases where private tow
truck operators obtain possession of the vehicle and its contents. In general, these
companies are common carriers owing the highest degree of care. Conger v. Cordes
Towing Serv., Inc., 58 Wn.2d 876, 878, 365 P.2d 20 (1961). Regardless of the standard
of care, however, the inventory conducted by officers and the requirement that
9
There may be circumstances where the driver has no authority over the contents of the vehicle,
raising the possibility that obtaining the consent of the driver would not insulate the law
enforcement agency from false claims.
19
No. 87104-3
inventoried property be listed on the standard inventory form required under RCW
46.55.075 is the clearest protection for these private companies.
The inventory search exception furthers officer and public safety. This includes
assisting law enforcement officers to identify and avert any danger posed by firearms and
other dangerous items left unsecured in an uninventoried vehicle where they might be
accessed. See Colorado v. Bertine, 479 U.S. 367,373, 107 S. Ct. 738, 93 L. Ed. 2d 739
(1987). We have recognized that in most instances there is little danger and its possibility
will not justify a search in every case, Houser, 95 Wn.2d at 154 n.2, and there are
generally thousands of vehicles on the streets or in other places generally not thought to
pose such dangers. Nonetheless, it is a consideration for deciding whether consent
furthers the purposes of the vehicle inventory search.
In a related vein, although recognizing these are not frequent occurrences, the
State and amici have offered examples of cases where harm to individuals, property, and
pets has resulted where vehicles have not been subjected to even a limited search before
vehicles are towed from the scene and stored in lots. Amicus curiae Towing and
Recovery Association of Washington has cited a number of news stories across the
country in which children, human remains, and explosives have been found during
inventory searches or after impoundment. A consent requirement would impede
discovery of such problems during routine inventory searches.
We decline to add a consent requirement to the inventory search exception. The
exception is already carefully limited to protect privacy interests recognized under article
20
No. 87104-3
I, section 7. Even if consent might add additional protection in some cases, this does not
mean it is constitutionally necessary. Unless manifest necessity exists, we have, as noted,
required obtaining consent to search lock containers and vehicle trunks, where privacy
interests are greater. Whether consent should be required in other subcategories of
inventory searches is not a question posed by this case, and we will not speculate.
Finally, we must address statements concerning consent in Williams and White.
As Tyler says, we have twice suggested that consent might be required if the owner is
present when the vehicle is impounded and the officer decides that an inventory search
should be conducted. In Williams, the driver was stopped when he tried to drive away
from the scene of a possible burglary. We held that the stop exceeded the scope of a
valid Terr/ 0 stop. We also rejected the State's argument that the search of the
defendant's car was justified as an inventory search, concluding that the requirements for
a lawful impoundment did not exist. Williams, 102 Wn.2d at 742-43. We added that if
impoundment had been authorized, it was "doubtful that the police could have conducted
a routine inventory search without asking [the defendant] if he wanted one done." ld. at
743.
In White, we concluded that the vehicle's trunk was locked regardless of the fact it
could be opened by operating a release latch in the passenger compartment. We therefore
applied our holding in Houser that the permissible scope of an inventory search does not
include locked containers or trunks "absent a manifest necessity for conducting such a
search." Houser, 95 Wn.2d at 156; see White, 135 Wn.2d at 771 ("possibility of theft
10
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
21
No. 87104-3
does not rise to the level of manifest necessity"). Because in searching the locked trunk
the police exceeded the authority to conduct an inventory search, evidence from the trunk
should have been suppressed.
In the course of our discussion in White, we noted the statement in Williams that
"police may not conduct a routine inventory search following the lawful impoundment of
a vehicle without asking the owner, if present, if he or she will consent to the search."
White, 135 Wn.2d at 771 n.11. In White, as in Williams, the search was held unlawful for
other reasons, i.e., because police searched a locked trunk.
Although both comments are dicta, and both refer to a context where the owner
was at the scene, neither case requires consent as a condition precedent to inventory
searches. Importantly, in neither case did we address the many factors that should be
considered in deciding whether consent to an inventory search should be required. We
engaged in little analysis. Moreover, the only authority underlying the dicta in Williams
and White is United States v. Lyons, 227 U.S. App. D.C. 284, 706 F.2d 321, 335 n.23
(1983), which was cited in Williams. But Lyons itself does not present much support.
In Lyons, officers engaged in a postarrest exploration of the closet in the
defendant's hotel room, which was unnecessary for safekeeping contents of the closet;
the officers could simply have locked the door as they left and the hotel would have the
responsibility of taking care of the defendant's belongings. The court concluded the
search of the closet could not be justified as an inventory search, explaining that the hotel
room served as the defendant's temporary abode and citizens' interests in the privacy of
22
No. 87104-3
their homes may be overridden only on a showing of public interests more compelling
than those necessary to justify intrusion into vehicles. As we have recognized, however,
there is a heightened privacy interest in one's dwelling.
In the footnote in Lyons that is specifically cited in Williams, cases are listed for
the proposition that consent is required in the automobile inventory setting. See id.
However, these cases do not indicate that consent should be a prerequisite to a valid
vehicle inventory search under article I, section 7. In the first case, United States v.
Wilson, 636 F.2d 1161 (8th Cir. 1980), the search of a locked trunk was at issue. We
have held, as explained, that an inventory search cannot include a locked trunk, and
unless a manifest necessity is presented, consent must be obtained to conduct a search of
a locked trunk. In the second case, State v. Killcrease, 379 So. 2d 737 (La. 1980), the
officers did not permit the defendant to call his wife, who was three miles away, to come
get the vehicle, or explore other alternatives. As explained, we require officers to
determine that there are no reasonable alternatives to impounding a vehicle. In the third
case, State v. Mangold, 82 N.J. 575, 414 A.2d 1312 (1980), the vehicle had been in an
accident and posed a safety hazard, the owner was present, and the court said that the
owner should have been allowed the opportunity to make arrangements for safekeeping
of property in the vehicle. In the fourth case, State v. Goff, 166 W.Va. 47, 272 S.E.2d
457 (1980), the vehicle was never taken into police custody; the facts did not show
impoundment. If the vehicle is never impounded, of course, an inventory search is not
justified under the inventory search exception we recognize under article I, section 7.
23
No. 8-7104-3
These cases do not support the conclusion that consent should be a requirement for an
inventory search under article I, section 7.
In short, neither Williams nor White required us to analyze the issue whether
consent should be required and accordingly there is little analysis of the question, and the
dicta in these cases rests on authority that does not support importing a consent
requirement into the vehicle inventory search exception under article I, section 7. We
have, nonetheless, concluded that consent is required in certain, limited circumstances
(absent manifest necessity, consent is required to search locked containers and locked
trunks because these areas are not subject to an inventory search after the vehicle is
impounded). Whether a consent requirement should be imposed in any other, limited
vehicle impoundment contexts is not presented by the circumstances of the present case.
We decline to adopt a requirement that consent of the owner, the owner's spouse,
or the driver is a necessary prerequisite for evidence obtained in a vehicle inventory
search to be admissible.
IV. Sufficiency of Evidence
Finally, Mr. Tyler contends that there is insufficient evidence supporting some of
the trial court's findings.
l-Ie correctly maintains that the court erroneously found that he was arrested on
February 11, 2009. The State concedes and the record shows he was stopped and
arrested on November 12, 2009. He also correctly points out that the court erroneously
found that both occupants of the car were engaged in furtive movements as Anglin
24
No. 87104-3
approached the car. The record shows that only the passenger made such movements
when he tried to hide the alcoholic beverage. Insufficient evidence supports these two
findings.
However, evidence supports the trial court's determination that Anglin conducted
a routine inventory search pursuant to department policies. Deputy Anglin testified that
he was trained to conduct routine inventory searches, that the procedures were standard
within the department, and that they had been followed for at least 10 years. Although
Anglin was not aware of any written policies, and the testimony elicited does not contain
details, there is sufficient evidence to support the court's finding. 11
Next, Tyler contends that there is insufficient evidence that he stopped the car a
foot from the fog line. Tyler testified that he stopped two or three feet from the fog line.
Deputy Anglin testified Tyler stopped a foot from the fog line. Credibility judgments are
left to the trial court. See State v. Broadaway, 133 Wn.2d 118, 134, 942 P.2d 363 (1997).
Lastly, Mr. Tyler contends that there is insufficient evidence supporting the trial
court's determination that Anglin authorized Tyler to give his cell phone to the passenger
in order for the passenger to try to find someone to retrieve the car. Anglin testified to
this effect, while Tyler testified that he was never asked whether he knew of someone
who could come get the car and that Anglin only asked him if the passenger could use the
11
While Anglin did not recall written policy, at the outset of the suppression hearing the State's
counsel said he had a copy of the Jefferson County Sheriffs Office policies and procedures on
impound and would provide defense counsel the procedure, which he described as largely
mirroring what the statutes provided.
25
No. 87104-3
cell phone to find someone to drive him, the passenger, from the scene. Again, the
credibility determination is for the trial court. Sufficient evidence supports the finding.
While two of the challenged findings are not supported by the evidence, this does
not undermine the trial court's rulings on the motions to suppress, for reconsideration,
and to reopen the suppression hearing. While the finding concerning the timing of
Tyler's arrest led the court to erroneously believe that Anglin's e-mail was sent before
Gant was filed, the trial court's determination that the hearing should not be reopened to
consider the e-mail on the issue of pretext is otherwise supported. The matter of whether
both occupants made furtive movements or just the passenger did does not alter the
analysis on any of the issues.
CONCLUSION
The trial court did not abuse its discretion when it denied the defendant's motion
to suppress the evidence that was obtained during the inventory search that followed
lawful impoundment of the car that he was driving. The evidence was insufficient to
show the search was a ruse to enable the officer to make an investigatory search. The
defendant's motion to reopen the suppression hearing was also properly denied because
the evidence of an e-mail that the arresting officer wrote does not show predisposition to
use an inventory search as a pretext for a more generalized search.
Contrary to Mr. Tyler's contention, under article I, section 7, law enforcement
officers are not required to obtain consent of a vehicle's owner, the owner's spouse, or
the driver before conducting an inventory search.
26
No. 87104-3
We affirm the Court of Appeals' decision.
27
No. 87104-3
WE CONCUR:
28
State v. Tyler, No. 87104-3
Chambers, J., dissenting
No. 87104-3
CHAMBERS, J.* (dissenting)-The majority argues the officer in this case
did nothing procedurally wrong when he impounded and searched the car, and
therefore the search was not pretextual. But our pretextual analysis has nothing to
do with proper procedure. The issue is whether those procedures were used as a
pretext for an investigation of criminal activity that would not otherwise have been
authorized by law.
We have in this case an e-mail by the searching officer relevant to a
pretextual analysis. In the e-mail, the searching officer states, "The obvious way to
circumvent [Gant 1] is impounding the vehicle and performing an inventory
search." Clerk's Papers at 36. This evidence, together with the other facts of this
case, persuades me that under the proper analysis, the purpose of the search was to
investigate criminal activity and would not otherwise have been authorized by law.
The pretense that police officers are doing these searches for the benefit of
the person whose privacy is invaded and whose property is searched is not tenable.
*Justice Tom Chambers is serving as a justice pro tempore of the Supreme Court pursuant to
Washington Constitution article IV, section 2(a).
1
Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009).
1
State v. Tyler, No. 87104-3
Chambers, J., dissenting
Assuming for a moment that an inventory search is for the protection of the owner
of the property, when balanced against the constitutional protection against
searches without authority of law, the accused's declaration that he does not want
his property searched undermines any notion the search is for the benefit of the
accused. The property owner should be able to consent or not consent to the
search. Because the rationale does not support the search in this case, I would hold
the inventory search here was pretextual, performed so the officer could conduct an
investigative search.
Unlike the federal constitution, which permits reasonable searches, article I,
section 7 of the Washington Constitution prohibits searches without authority of
law. I would hold that so-called "inventory" searches in the presence of the owner
of the vehicle are indistinguishable from ordinary searches and that the full
protections of our constitution should apply. I respectfully dissent.
2
State v. Tyler, No. 87104-3
Chambers, J., dissenting
3
State v. Tyler
Combined Opinion