State v. Wisdom

Korsmo, J.

¶59 (dissenting) — It boggles the mind that an officer cannot look inside an unlocked bag visibly full of money while inventorying the contents of a stolen truck. Nonetheless, the majority reaches that result in the absence of relevant authority by expanding dictum in an opinion that itself relied on subsequently rejected case law. For these, and other, reasons, I dissent. A thief does not have a privacy interest in stolen property that society should recognize as reasonable and, thus, Mr. Wisdom had no standing to contest the inventory search. But, even if there was standing, the officer could look through an unlocked bag left on the front seat of the stolen truck. Because the officer properly looked inside the bag while conducting a lawful inventory search that Mr. Wisdom lacked standing to challenge, the convictions should be affirmed.

¶60 Initially, I note my agreement with the majority that the trial court erred in stating that Mr. Wisdom lacked an “expectation of privacy” in the gym bag full of money and drugs. Expectation of privacy is a Fourth Amendment concern. State v. Myrick, 102 Wn.2d 506, 510, 688 P.2d 151 (1984). Under article I, § 7, the consideration is whether a defendant’s “private affairs” have been invaded. Myrick, 102 Wn.2d at 510. That term “focuses on those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant.” Id. at 511. Mr. Wisdom argues this case on the basis of our state constitution rather than the federal constitution. The question for us then is whether he had any privacy interest in the contents of the stolen truck that he “should be entitled to hold, safe from governmental trespass absent a warrant.” Id.

¶61 Washington initially granted automatic standing under article I, § 7 in criminal cases when a defendant was charged with a possessory offense and was in possession of the item at the time of the search. E.g., State v. Simpson, 95 Wn.2d 170, 181, 622 P.2d 1199 (1980) (plurality opinion). Subsequently, our court has recognized that typically it is the defendant’s “private affairs” that govern whether standing exists. State v. Carter, 127 Wn.2d 836, 848-49, 904 P.2d 290 (1995). Nonetheless, the concept of automatic standing “still maintains a presence in Washington.” State v. Williams, 142 Wn.2d 17, 22, 11 P.3d 714 (2000).¹ Under either approach, Mr. Wisdom lacks standing to challenge the inventory search of the bag.

¶62 It is an open question whether or not a defendant has any privacy interest in a stolen vehicle or its contents. See State v. Zakel, 119 Wn.2d 563, 571, 834 P.2d 1046 (1992).² I would answer that question “no” because one reason for an inventory search is to protect a vehicle owner’s property. State v. White, 135 Wn.2d 761, 769-70, 958 P.2d 982 (1998). I would hold that a thief has no privacy interest that overrides that of the true owner. An inventory search to protect and recover the true owner’s property should not be constrained by a thief’s assertions concerning which of the contents are his and which are not.

¶63 On this record, I would additionally note that Mr. Wisdom never claimed ownership of anything other than the methamphetamine³ on the front seat, contraband in which he could have no privacy interest that our society would recognize as reasonable. Thus, although the trial court used the wrong verbiage, the judge reached the correct result. Mr. Wisdom lacked standing to challenge the inventory search.⁴

¶64 The same result should follow even under the automatic standing doctrine since it does not appear that the doctrine “maintains a presence” under these facts. This case does not present the self-incrimination problem to which our automatic standing doctrine applies. See State v. Jones, 146 Wn.2d 328, 334, 45 P.3d 1062 (2002).⁵ Mr. Wisdom had already claimed ownership of the drugs prior to the inventory. He would not further incriminate himself by moving to suppress or testifying in support of the motion. Thus, the stated purpose for our automatic standing doctrine would not be advanced here.

¶65 For both reasons, Mr. Wisdom lacked standing to contest the scope of the inventory search. On that basis alone, we should affirm.

¶66 Nonetheless, assuming Mr. Wisdom had standing, there was nothing wrong with looking inside the unlocked bag full of money — money that could be seen from outside the truck. Inventory searches of stolen vehicles are permitted. State v. Tyler, 177 Wn.2d 690, 698, 302 P.3d 165 (2013); Simpson, 95 Wn.2d at 189; State v. Houser, 95 Wn.2d 143, 149, 622 P.2d 1218 (1980); RCW 46.55.113(2)(e). The properly conducted inventory search “is made for the justifiable purpose of finding, listing, and securing from loss” property. State v. Montague, 73 Wn.2d 381, 385, 438 P.2d 571 (1968) (emphasis added); accord White, 135 Wn.2d at 770.⁶ The scope of the inventory search includes the glove compartment and unlocked containers in the vehicle. White, 135 Wn.2d at 766-67.⁷ The rule of Houser is that locked containers cannot be searched.⁸ Tyler, 177 Wn.2d at 708. Thus, anything left in a locked trunk is inside a locked container and cannot be disturbed. Tyler, 177 Wn.2d at 708; White, 135 Wn.2d at 766-68.

¶67 The majority, however, mistakenly equates closed containers with locked containers. The mesh bag in question was zippered shut; it was closed, not locked. The cases cited by the majority do not aid its analysis on this point. In each instance, a closed container within another container was not permitted to be searched. In Houser, the court stated that the police could not open and inventory a closed toilet kit found inside a bag inside the locked trunk. 95 Wn.2d at 147, 156. In State v. Dugas, 109 Wn. App. 592, 36 P.3d 577 (2001), the police were not permitted to check the contents of a closed “key ring pouch” found in the pocket of a coat. In White, the court declined to consider the validity of the search of an unlocked tackle box found in a locked trunk. 135 Wn.2d at 765, 772. In both instances where it addressed the issue, the court could simply have said that the police lacked authority to go inside the container in question (a bag in Houser and the coat in Dugas) if the rule were as the majority suggests. Neither case did so. Instead, those courts focused on the lack of need to open a container found within another container.⁹ Houser and Dugas do not support the argument that the contents of an unlocked bag sitting on the seat of a truck cannot be inventoried.

¶68 But, even if the container rule applies to the mesh bag in this case, an exception should be made for valuable property that is visible to any viewer of the container. The need of the police department to secure the victim’s property and to protect itself from claims (by either the victim or the defendant) concerning missing money should take precedence over any privacy interest that may exist in money openly displayed to the public.¹⁰ It defeats the very purpose of an inventory search — to list and secure property, as well as protecting law enforcement from false claims — to make the police ignore a valuable item in plain sight and act without knowledge of what was in their possession.¹¹ What is needed to secure $50 might be different than what is needed to secure $50,000. The police need to know what they are guarding and, in cases like this, to whom the property belongs. It simply is not possible to perform these tasks without identifying what has come into their possession.

¶69 While the majority suggests that a search warrant should have been sought, that is no answer in the typical case. If Mr. Wisdom had declined to speak, the officer simply would have been facing a bag of money without any reason to believe there might be contraband in the truck. It is not illegal to possess money. How could the officer have obtained a search warrant under those facts?¹² Nor, for that matter, could the officer have relied on Mr. Wisdom’s consent to search the truck since he was not lawfully in possession of the vehicle. There simply was no means of performing the officer’s duty under the impound laws without inventorying the contents of the bag. For that reason, I also would hold that police have the right during an inventory to check the entire contents of a bag when valuable property is visible.

¶70 Thus, I would hold (1) a defendant’s “private affairs” do not include items located in a stolen vehicle, (2) the automatic standing doctrine does not apply here since Mr. Wisdom had already incriminated himself, (3) a proper inventory search extends to the contents of unlocked containers found inside a vehicle (but not in the trunk), and (4) when money or other valuable property is visible in an unlocked container, the police have a right to inventory the contents of the container in order to fulfill their obligations under our impound and inventory laws. I would affirm and, accordingly, therefore dissent from the majority’s disposition of this case.

After modification, further reconsideration denied September 3, 2015.

1 Because Simpson was only a plurality opinion, subsequent cases left open the question of whether automatic standing applied under our state constitution. E.g., Carter, 127 Wn.2d at 836; State v. Goucher, 124 Wn.2d 778, 787-88, 881 P.2d 210 (1994); State v. Zakel, 119 Wn.2d 563, 571, 834 P.2d 1046 (1992). After Williams, our court twice applied automatic standing, implicitly adopting it under our constitution. State v. Evans, 159 Wn.2d 402, 406-07, 150 P.3d 105 (2007); State v. Jones, 146 Wn.2d 328, 331-35, 45 P.3d 1062 (2002). Jones expressly limited the doctrine to the situation where a defendant would be forced to either incriminate himself by claiming ownership at a suppression hearing or forego bringing a suppression challenge. Id. at 334.

2 The Zakel court also declined to decide if automatic standing applied since the defendant was not in possession of vehicle at time of police search.

3 The majority mistakenly asserted that Mr. Wisdom claimed ownership of the bag as well as the methamphetamine. He did not. After the inventory turned up the methamphetamine, Mr. Wisdom admitted that the bag was his. Report of Proceedings (RP) at 17. However, prior to the search, all he claimed was the methamphetamine. RP at 5 (“he stated that there was more methamphetamine in the pickup”), 12-14, 19-21. He did not claim ownership of anything else in the truck. RP at 17. Standing is judged at the time of the search, not after the fact. E.g., Zakel, 119 Wn.2d at 571.

4 Strangely, the majority faults this dissent for discussing the standing issue at all, even though standing was the basis on which the trial judge rejected the suppression argument. See Williams, 142 Wn.2d at 23 (“Additionally, the defendant’s challenge to this police search would fail, even if we found that Williams had a sufficient expectation of privacy in Jelinek’s apartment to confer standing.”). Without a reasonable expectation of privacy, Mr. Wisdom had no basis for challenging the inventory. Id. The majority’s error probably occurred because appellant mistakenly argued standing as a subset of his consent argument and the prosecutor, who was not relying on consent, understandably did not address the consent argument. But, even if standing had not been decided by the trial court, it is still a topic this court must entertain on appeal. RAP 2.5(a); see Int’l Ass’n of Firefighters, Local 1789 v. Spokane Airports, 146 Wn.2d 207, 212 n.3, 45 P.3d 186 (2002).

5 While it is somewhat incongruous to use Fifth Amendment standards to adjudge whether standing exists for Fourth Amendment or article I, § 7 challenges, that incongruity exists because of the desire to effectuate the different interests guaranteed by all of those constitutional provisions. Whether there is need to use automatic standing in light of the procedural protections of CrR 3.5 and CrR 3.6 is debatable.

6 “State law required that [the officer] list the inventory of the vehicle before turning it over to the private towing company.” Tyler, 177 Wn.2d at 705.

7 White cites the Houser court’s discussion of South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976), for this proposition. 135 Wn.2d at 766. Given that Houser did not involve a search of the glove compartment, this conclusion may be a stretch. If unlocked glove compartments are subject to inventory searches, then that standard is a far better fit for the unlocked bag in this case than the locked trunk situation is.

8 In the course of its analysis, the Houser court relied in part on the decisions in Arkansas v. Sanders, 442 U.S. 753, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979) (unlocked luggage) and United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977) (locked footlocker). See Houser, 95 Wn.2d at 156-58. Those cases subsequently were overruled in favor of permitting searches of containers found inside vehicles. California v. Acevedo, 500 U.S. 565, 111 S. Ct. 1982, 114 L. Ed. 2d 619 (1991). Inexplicably, the majority still relies on Sanders despite, and without acknowledging, its demise.

9 In the context of inventorying a wallet during jail booking, this court has rejected the container rule. State v. Garcia, 35 Wn. App. 174, 665 P.2d 1381 (1983).

10 For similar reasons, the Tyler court rejected an argument that consent should be obtained prior to conducting a vehicle inventory. 177 Wn.2d at 707-11.

11 As the officer testified here: “any time there is something of high value it’s never left in an impounded vehicle. It’s placed into property and then claimed by the rightful owner.” RP at 9.

12 The majority does not attempt to answer this question, presumably because a search warrant cannot issue without probable cause to believe a crime has been committed, nor does it attempt to answer the problem of a thief’s ability to contest an inventory in the absence of automatic standing. At its heart, an inventory search is a statutorily and judicially regulated aspect of law enforcement’s community caretaking function. As such, judicial regulation should consider all interests — those of the vehicle owner as well as any interest asserted by the thief in possession of the vehicle — when limiting the scope of the inventory search. Since Mr. Wisdom at the time of the inventory disclaimed ownership of anything in the stolen truck except something no one can own, this is not the case to impose new limitations.