Wednesday, June 05, 2013

The Inventory Search, Pretext and the Email

When he was convicted, after a “stipulated facts bench trial” of “possession of methamphetamine” in violation of Washington Revised Code § 69.50.4013(1) and “driving while his license was suspended or revoked in the third degree” in violation of Washington Revised Code § 46.20.342(1)(c), Larry Dean Tyler appealed.  State v. Tyler, __ P.3d __, 2013 WL 2367952 (Supreme Court of Washington 2013).

According to this opinion, the case began on November 12, 2009, when

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 the vehicle's owner was a woman whose driver's license was suspended. He stopped the car for speeding and the driver, Tyler, pulled onto the paved shoulder of the highway. Anglin . . . stopped less than a foot from the fog line. 

As 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 both men's drivers' licenses were suspended. 

The deputy arrested 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.

Anglin asked for consent to search the car, but both men refused. Tyler told Anglin 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 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.

. . . [T]he 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.

State v. Tyler, supra.

The opinion also explains that Anglin was concerned that the car posed a “safety hazard” to other traffic, so, since there was no one to drive it away, he

called a private towing company after deciding to impound the car for roadway safety. He also [said] 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 [said the] 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 Anglin 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.

State v. Tyler, supra.

The discovery of the baggie, and its contents, led to Tyler’s being charged possession of methamphetamine, which, as noted above, was one of the crimes with which he was charged.  State v. Tyler, supra.  Tyler then “moved to suppress the evidence that was obtained during the vehicle search, arguing that the search was an unconstitutional pretextual search.”  State v. Tyler, supra.  

The trial judge held a hearing on Tyler’s motion and, after hearing testimony, found 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.’ . . . (Mem. Op. and Order on Mot. to Suppress Evidence, filed Jan. 21, 2010). On January 29, 2010, Tyler moved for reconsideration [of the judge’s ruling].

He conceded that `the impound was reasonable,’ . . . but argued 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 . . . hearing to permit examination of Anglin about an e-mail Anglin had written that was produced after the . . . 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.

State v. Tyler, supra.  The judge denied both of Tyler’s motions, so he went to trial and, as noted above, was convicted. State v. Tyler, supra.  

On appeal, Tyler argued 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.’” State v. Tyler, supra.  As I have noted in prior posts, each U.S.state has its own constitution, and some of them have provisions that provide privacy guarantees which either duplicate the language of the 4th Amendment and/or use different language, which may or may not provide more protection than the 4th Amendment.

The Supreme Court noted that this provision of the state constitution “affords protection to privacy interests in vehicles.”  State v. Tyler, supra.  It also explained that a

valid warrant constitutes `authority of law’ under article I, section 7.  State v. Valdez, 167 Wash.2d 761, 224 P.3d 751 (Washington Supreme Court 2009). Warrantless searches of vehicles are per se unreasonable, subject to a few exceptions that are narrowly drawn. . . . One of these exceptions is a valid inventory search, and this is the exception the State maintains justifies the search of the car that Tyler was driving. The burden of establishing that this exception applies is on the State. . . .

State v. Tyler, supra.  

The Court then took up Tyler’s argument that the inventory search violated the state constitution.  State v. Tyler, supra.  In the proceedings before the trial court, he conceded it was proper for Anglin to impound his car, which provided the predicate for an inventory search. State v. Tyler, supra.  The Supreme Court, though, found that this concession did not apply in this appeal.  It explained that the

concession occurred before Tyler received a copy of the e-mail that 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 . . . that he would not have made the concession after receiving it. Thus,  . . . we do not proceed on the basis that Tyler concedes reasonableness.

State v. Tyler, supra.  

The Supreme Court therefore analyzed whether the impound was, in fact, lawful.  It began with the relevant law, noting that Under

Washington Revised Code § 46.55.113(1), `summary’ impoundment is authorized when the driver of the vehicle is arrested for driving while his license is suspended. Under Washington Revised Code § 46.55.113(2)(b) and (d), 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.

The court then analyzed the need for Anglin to impound the vehicle:

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 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 [at the hearing on the motion to suppress] 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 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.

State v. Tyler, supra.  

The court therefore found the impoundment was lawful because the “vehicle threatened public safety if left where it was” and because “Tyler had been arrested for, among other things, driving with a suspended license.”  State v. Tyler, supra.  

It then took up the legality of the inventory search, explaining that such a search

of a vehicle may be conducted in good faith after it is lawfully impounded. . . .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. . . .

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 Wash.2d 761, 958 P.2d 982 (Supreme Court of Washington 1998). . . . An inventory search must be restricted to the areas necessary to fulfill the purpose of the search. . . . 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.’ State v. Houser, 95 Wash. 2d 170, 622 P.2d 1199 (Supreme Court of Washington 1980).

State v. Tyler, supra.  

On appeal, Tyler claimed the inventory search was pretextual, based on an email Anglin had written long before he encountered Tyler and his passenger on the highway.  State v. Tyler, supra.  

The subject line of the e-mail states: `RE: Search incident to arrest’ and Anglin sent it to other sheriff's department personnel in an attempt to persuade them that he should be trained as a K–9 officer. 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.

State v. Tyler, supra.  

Tyler argued that the first paragraph of the email showed that Anglin “was predisposed to conduct pretextual inventory searches in order to circumvent the decision in Arizona v. Gant, 556 U.S. 332,(2009). State v. Tyler, supra.  As Wikipedia explalns, in Gant, the Supreme Court redefined the scope of an officer’s search incident to arrest of a vehicle whose driver had been arrested.  The Court held, as Wikipedia notes, that “police may search the passenger compartment of a vehicle, incident to a recent occupant's arrest (and therefore without a warrant) only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search, or that the vehicle contains evidence of the offense of arrest.”

This is what the first paragraph of Anglin’s email said:

`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.’

State v. Tyler, supra.  The court noted that 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.State v. Tyler, supra.  As Wikipedia also notes, prior to Gant, the Belton rule let an officer conduct a search incident of the passenger compartment, and any containers in the passenger compartment, as a matter of routine, i.e., the officer did not have to show there was reason for such a search based on the facts in that case.

The Supreme Court did not buy Tyler’s argument.  It noted, first, that since Anglin properly impounded the vehicle, he “had not alternative but to conduct an inventory search to protect himself, his department, and the tow company from possible future claims.”  State v. Tyler, supra.  It also noted that 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 sheriff's 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 . . . 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.

State v. Tyler, supra.  

The Supreme Court therefore held that the trial court did not err in denying the motion to suppress, and so upheld Tyler’s conviction.  State v. Tyler, supra.  

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