State v. Houser

• Decision Date: 31 December 1980
• Docket Number: No. 45807,45807
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Lynn D. HOUSER, Petitioner.

Page 143

95 Wn.2d 143

622 P.2d 1218

The STATE of Washington, Respondent, v. Lynn D. HOUSER, Petitioner.

No. 45807.

Supreme Court of Washington, En Banc.

Dec. 31, 1980.

Walstead, Mertsching, Husemoen, Donaldson & Barlow, C. C. Bridgewater, Jr., Longview, for petitioner.

Henry R. Dunn, Cowlitz County Pros. Atty., Kenneth L. Cowsert, Deputy Pros. Atty., Kelso, for respondent.

WILLIAMS, Justice.

Defendant was convicted in the Superior Court for Cowlitz County on two counts of possession of a controlled substance. The charges were based on drugs found in the course of a search of a closed toiletry bag in the locked trunk of defendant's car after its impoundment. Defendant filed a motion to suppress the evidence, contending that the impoundment and search were unlawful. The trial court denied the motion and found defendant guilty. Division Two of the Court of Appeals affirmed the convictions, holding that the impoundment and search of defendant's car were reasonable. State v. Houser, 21 Wash.App. 30, 584 P.2d 410 (1978). We reverse.

The facts giving rise to this appeal are as follows: On April 8, 1977, at approximately 11:15 a. m., state trooper McNett, while on routine patrol, stopped defendant for making an improper turn in the city of Kelso. The car when stopped, was off the roadway next to a supermarket parking lot. When McNett asked defendant for his driver's license, defendant was unable to produce one. He attempted to identify himself, however, by producing a Quinault Indian Reservation Employee permit on which the name Anthony Kimber appeared. Defendant also produced a temporary registration showing Anthony Kimber to be the registered owner of the car.

McNett ran a radio check on the name Anthony Kimber. The radio check revealed that the description of Anthony Kimber did not match defendant's. McNett then placed defendant under arrest for the improper turn and patted him down. Finding no weapon, McNett placed defendant in the patrol car.

McNett examined defendant's car in the area of the front seat to determine the car's ownership and he found an insurance claim application bearing the name Lynn Houser. McNett ran a radio check on that name and found that the description matched defendant's. The report further indicated that Houser's driver's license was suspended. He then advised defendant that he was under arrest for obstructing an officer and driving while his license was suspended. McNett advised defendant of his constitutional rights and informed him that he was taking him to jail. Apparently based on his observation that the vehicle bore an Oregon license plate, McNett then checked by radio to determine if the car was stolen, and he learned that the car was not listed as stolen. McNett frankly admits that at the time of the incident he did not have probable cause to believe that the car was stolen.

McNett asked defendant what he wanted done with the vehicle, and defendant gave him the names of several individuals to call who might take care of the car for him. McNett called several of them and finally reached Timothy Moss, who agreed to come and get the car. Sometime after the call, but before Moss arrived, McNett decided not to allow Moss to take the car; instead, he decided to impound it. He called a tow truck to get the car and radioed trooper O'Neill to come to the scene. McNett asked O'Neill to perform a routine inventory search of the car while he took the defendant to jail. Defendant did not give permission for the impoundment or the search, and no warrant was obtained. In the course of the search, O'Neill opened the locked trunk of the car with a key obtained from defendant and found a shopping bag containing an assortment of pills, some of which were controlled substances. Inside the bag was a closed toiletry bag which also contained drugs. When Moss arrived on the scene, he was not permitted to take possession of the car. After completing the inventory search, O'Neill had the car towed away and then proceeded to the jail in order to give McNett the articles found in the locked trunk.

McNett took the items collected by O'Neill and put them in his evidence locker at patrol headquarters. He kept them there until the next day when he commenced his inventory of the items. Although the record is not fully clear on this point, it appears that the contraband which was the basis of defendant's conviction was discovered inside the closed toiletry bag which was inside the shopping bag. McNett turned the evidence over to the laboratory for analysis.

Contending that the evidence obtained during the inventory search should have been suppressed by the trial court, defendant challenges the propriety of the impoundment as well as the scope of the search. We find merit in both challenges. Each of these grounds is sufficient to warrant exclusion of the evidence.

I.

The general rule regarding the admissibility of evidence discovered during an inventory search accompanying the impoundment of a vehicle has been set forth in State v. Montague, 73 Wash.2d 381, 385, 438 P.2d 571 (1968), as follows:

When ... the facts indicate a lawful arrest, followed by an inventory of the contents of the automobile preparatory to or following the impoundment of the car, and there is found to be reasonable and proper justification for such impoundment, and where the search is not made as a general exploratory search for the purpose of finding evidence of crime but is made for the justifiable purpose of finding, listing, and securing from loss, during the arrested person's detention, property belonging to him, then we have no hesitancy in declaring such inventory reasonable and lawful, and evidence of crime found will not be suppressed.

See State v. Olsen, 43 Wash.2d 726, 263 P.2d 824 (1953). Concomitantly, the court in Montague stated that

(n)either would this court have any hesitancy in suppressing evidence of crime found during the taking of the inventory, if we found that either the arrest or the 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. State v. Michaels, 60 Wash.2d 638, 374 P.2d 989 (1962); People v. Garrison, 189 Cal.App.2d 549, 11 Cal.Rptr. 398 (1961).

State v. Montague, supra, 73 Wash.2d at 385, 438 P.2d 571. See State v. Singleton, 9 Wash.App. 327, 511 P.2d 1396 (1973). In determining whether the fruits of an inventory search following the impoundment of a vehicle are admissible evidence of a crime, our first inquiry, then, is whether the state can show reasonable cause for the impoundment.

The starting point for our analysis is the fourth amendment to the United States Constitution and Const. art. 1, § 7. Both provisions place a limitation on governmental searches and arbitrary intrusions into private affairs. State v. Smith, 88 Wash.2d 127, 559 P.2d 970 (1977); Seattle v. See, 67 Wash.2d 475, 408 P.2d 262 (1965). The purpose of these provisions is to prevent unreasonable searches and seizures without probable cause. Seattle v. See, supra. The reasonableness of a search or seizure must be decided in light of the facts and circumstances of the case. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).

Several theories have been forwarded to justify the impoundment of the vehicle in the present case. First, the state contends that officer McNett properly impounded the car on the basis of a suspicion that it might have been stolen.

As a general rule, warrantless searches and seizures are per se unreasonable. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Nonetheless, there are a few " 'jealously and carefully drawn' exceptions" to the warrant requirement which "provide for those cases where the societal costs of obtaining a warrant, such as danger to the law officers or the risk of loss or destruction of evidence, outweigh the reasons for prior recourse to a neutral magistrate." Arkansas v. Sanders, 442 U.S. 753, 759, 99 S.Ct. 2586, 2590, 61 L.Ed.2d 235 (1979). See Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514 (1958). The burden is on the prosecutor to show that a warrantless search or seizure falls within one of these exceptions. See Arkansas v. Sanders, supra.

One circumstance in which a warrant is not required is where the police stop an automobile on the highway because they have probable cause to believe it contains contraband or evidence of a crime. Arkansas v. Sanders, supra. There are two reasons for this exception to the warrant requirement. First, the inherent mobility of automobiles makes rigorous enforcement of the warrant requirement impracticable. Arkansas v. Sanders, supra; South Dakota v. Opperman, supra; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Second, the expectation of privacy in regard to one's automobile is less than that relating to a home or office. Arkansas v. Sanders, supra; South Dakota v. Opperman, supra; Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974). In respect to the search and seizure of automobiles, the warrant requirement is subordinate to the requirement of probable cause. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). Therefore, the impoundment of a vehicle will be considered reasonable if an officer has probable cause to believe that it was stolen or that it was being used in the commission of a felony. See State v. Glasper, 84 Wash.2d 17, 523 P.2d 937 (1974); State v. Singleton, supra.

In this case, officer McNett by his own admission did not have probable cause to believe the car was stolen, and defendant was not charged with theft. Indeed, according to McNett's testimony, it could at best be said that he was not sure "that it wasn't a stolen vehicle." Following his discovery that the defendant had given him a false identification and that the car was not registered in defendant's...