State v. Tyler , 177 Wash. 2d 690 ( 2013 )

Chambers, J.^*

¶67 (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.

¶68 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 [Gant¹²] 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.

¶69 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. 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.

¶70 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.

* Justice Tom Chambers is serving as a justice pro tempore of the Supreme Court pursuant to Washington Constitution article IV, section 2(a).

12 Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009).