State v. Hardman, 2257-II

• Decision Date: 29 June 1977
• Docket Number: No. 2257-II,2257-II
• Citation: 17 Wn.App. 910,567 P.2d 238
• Parties: The STATE of Washington, Respondent, v. Robert C. HARDMAN, Appellant.
• Court: Washington Court of Appeals

Page 910

17 Wn.App. 910

567 P.2d 238

The STATE of Washington, Respondent, v. Robert C. HARDMAN, Appellant.

No. 2257-II.

Court of Appeals of Washington, Division 2.

June 29, 1977.

Stanley G. Williams, Bremerton, for appellant.

Richard B. Jones, Deputy Pros. Atty., John C. Merkel, Pros. Atty., Kitsap County, Port Orchard, for respondent.

PETRIE, Chief Judge.

This appeal challenges the propriety of an inventory search of an automobile.

On the evening of September 5, 1975, defendant was driving his automobile in Port Orchard. At approximately 6:30 p. m. he lost control of the vehicle and struck a sign by the side of the road. This accident was witnessed by Deputy Marvin Parks of the Kitsap County Sheriff's Office, who was driving in the opposite direction. Deputy Parks yelled to defendant to stop, and defendant turned into the parking lot of a retail tire merchant and stopped his car in front of one of the service bays. Deputy Parks then approached defendant, who appeared to be in a state of intoxication, and subsequently arrested him for driving while under the influence of intoxicating liquor. Deputy Parks then determined to impound defendant's vehicle and conducted an on-the-scene inventory search, locating some marijuana and cocaine under the front seat. Defendant was charged and convicted on two counts of possession of controlled substances and one count of DWI. On appeal, he contends that evidence of the controlled substances should have been suppressed as the product of an unreasonable search, and that evidence presented to the jury was insufficient to support his conviction of DWI.

Inventory searches, without benefit of a search warrant, have continuously been upheld in Washington when conducted incident to a lawful impoundment. State v. Montague, 73 Wash.2d 381, 438 P.2d 571 (1968); State v. Bales, 15 Wash.App. 834, 552 P.2d 688 (1976). It is necessary, however, that the impoundment be authorized by statute or ordinance, or, in the absence of a statute or ordinance, there must be reasonable cause for the impoundment. State v. Singleton, 9 Wash.App. 327, 511 P.2d 1396 (1973). An inventory of the contents of a vehicle reasonably impounded by the police has been held to be proper within the "community caretaking functions" of the police. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); United States v. Balanow, 528 F.2d 923 (7th Cir. 1976); see Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973); State v. Lund, 10 Wash.App. 709, 519 P.2d 1325 (1974). Such warrantless inventory searches, when not intended to discover evidence of a crime, have been justified by the "benign purposes" of protection of public safety, protection of the driver's property, protection of the police from danger or from liability for claimed thefts, or protection of temporary storage bailees against false charges. See South Dakota v. Opperman, supra, 428 U.S. at 367, 96 S.Ct. at 3096; State v. Gluck, 83 Wash.2d 424, 518 P.2d 703 (1974). These legitimate interests must, however, be weighed against the invasion of privacy inherent in an inventory of the vehicle's contents, in order to determine if the inventory search is "reasonable" under the Fourth Amendment. South Dakota v. Opperman, supra ; note, Warrantless Searches and Seizures of Automobiles, 87 Harv.L.Rev. 835, 848-53 (1974). Thus, the State has the burden of proving that an impoundment is reasonable under the circumstances existing at time of the search, and an impoundment is improper when reasonable alternatives to impoundment exist. State v. Bales, supra ; State v. Greenway, 15 Wash.App. 216, 547 P.2d 1231 (1976).

The State relies on the oral decision of the suppression hearing judge that the deputy would have been remiss in his duty to leave the car on the commercial premises where it would have been an obstruction for an indefinite time and subject to vandalism. The State also stresses that defendant offered neither objection nor any alternative to the impoundment.

We accept the several premises that defendant was incapable of driving the car, that he had no authority or permission to leave it on the private property, and further, that it was uncertain how long it might be before he could arrange to move the car. However, as we have noted, the burden is on the State to justify the impoundment procedure. Here, there was no testimony on behalf of the State as to Deputy Parks' exploration of reasonable alternatives or why he ultimately determined to impound the vehicle, nor did the prosecution argue that impoundment under the circumstances was reasonable. Absent any express justification by the State in the record concerning the impoundment, the procedure risks creating a suspicion that it was a mere pretext for a general exploratory search of the car. State v. Montague, supra. The following language from State v. Bales, supra, 15 Wash.App. at pages 836-37, 552 P.2d at pages 690 is appropriate to this situation:

Although his vehicle was illegally parked, it could have easily been moved a short distance to a legal parking area and temporarily secured against theft. (Citations omitted.) The defendant had indicated that a friend could arrive within a few minutes to pick up the vehicle. . . . When a friend or relative is available to move a vehicle for a defendant just arrested on a traffic charge, the arresting officer is not justified in calling for an impoundment absent other circumstances. (Citation omitted.) Impoundment of a citizen's vehicle following his or her arrest on a traffic charge is inappropriate when reasonable alternatives to impoundment exist. To permit a subsequent warrantless inventory search to be accomplished thereby would be improper.

In State v. Greenway, supra, the court upheld an impoundment and search of a car which was parked in a restricted zone. The driver was stopped for a traffic violation, and he objected to the impoundment but did not offer any reasonable alternatives. The officer had learned, while ticketing the driver, that there was an outstanding felony warrant for his arrest and knew that the driver might be incarcerated for a long time before making bail. In addition to the restricted parking, sewer construction in the area suggested to the officer that the car would have to be moved. With these factors collectively justifying impoundment, we do not read Greenway as placing the burden on the person arrested to offer the policeman alternatives to the impoundment.

Nor do we...