STATE OF WASHINGTON, Petitioner, v. JOEL A. VILLELA, Respondent.
No. 96183-2
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
OCT 17 2019
En Banc
We are asked today whether the legislature has created “authority of law,” as understood in our constitution, by passing
FACTS
Late one night in January 2018, Sergeant Paul Snyder stopped a jeep driven by Joel Villela for speeding. Sergeant Snyder smelled alcohol on Villela‘s breath and, after Villela declined a roadside field sobriety test, arrested him on suspicion of driving while under the influence of intoxicants (DUI). Sergeant Snyder also impounded Villela‘s jeep under
After the jeep was impounded, Sergeant Snyder did an inventory search of its contents. Sergeant Snyder found sandwich bags, digital scales, black cloth, pipes, and $340 in cash, all of which he believed was associated with drug dealing. A search incident to arrest discovered cocaine on Villela himself. Villela was charged with DUI and possession with intent to deliver controlled substances.
Villela moved to suppress the fruits of the inventory search on the grounds that the mandatory impound of his jeep (which was the only grounds for the search) was not a lawful seizure under article I, section 7.1 At the hearing, the trial judge noted that this issue had come up several times before in the Grant County Superior Court, including in his own courtroom. Villela offered evidence that the costs associated with even a brief vehicle impound can easily
[W]hile a state may impose more restrictive standards than the constitution requires, it may not, as the Washington legislature did when it enacted
RCW 46.55.360 , expand the scope of police authority to [search] and seize under the constitution. See Nathanson v. United States, 290 U.S. 41, [54 S. Ct. 11, 78 L. Ed. 159] (1933). That statute, therefore, is unconstitutional.
Clerk‘s Papers at 50.
The parties agreed that there was good cause for immediate review. RAP 2.4, 2.3(b)(4). Thus, there has been no trial yet. Our commissioner granted the State‘s motion for direct review. The Washington State Patrol submitted an amicus brief supporting the State. The American Civil Liberties Union of Washington, the Washington Defender Association, the Washington Association of Criminal Defense Lawyers, and the Institute for Justice filed a joint amicus brief supporting Villela.
ANALYSIS
“The right to be free from searches by government agents is deeply rooted in our nation‘s history and law, and it is enshrined in our state and national constitutions.” State v. Day, 161 Wn.2d 889, 893, 168 P.3d 1265 (2007) (citing
Villela challenges the constitutionality of the mandatory seizure statute,
(1)(a) When a driver of a vehicle is arrested for a violation of
RCW 46.61.502 [driving under the influence] or46.61.504 [physical control of a vehicle while under the influence], the vehicle is subject to summary impoundment and except for a commercial vehicle or farm transport vehicle under subsection (3)(c) of this section, the vehicle must be impounded.. . . .
(2)(a) When a driver of a vehicle is arrested for a violation of
RCW 46.61.502 or46.61.504 and the driver is a registered owner of the vehicle, the impounded vehicle may not be redeemed within a twelve-hour period following the time the impounded vehicle arrives at the registered tow truck operator‘s storage facility . . . unless there are two or more registered owners of the vehicle or there is a legal owner of the vehicle that is not the driver of the vehicle. A registered owner who is not the driver of the vehicle or a legal owner who is not the driver of the vehicle may redeem the impounded vehicle after it arrives at the registered tow truck operator‘s storage facility.
(a) [t]o change the primary reason for impounding the vehicle operated by a person arrested for driving or controlling a vehicle under the influence of alcohol or drugs. The purpose of impoundment under [ RCW 46.55.350 -.360] is to protect the public from a person operating a vehicle while still impaired, rather than to prevent a potential traffic obstruction; and(b) [t]o require that officers have no discretion as to whether or not to order an impound after they have arrested a vehicle driver with reasonable grounds to believe the driver of the vehicle was driving while under the influence of alcohol or drugs, or was in physical control of a vehicle while under the influence of alcohol or drugs.
We use a two-step analysis to determine whether article I, section 7 has been violated. State v. Puapuaga, 164 Wn.2d 515, 521-22, 192 P.3d 360 (2008) (citing State v. Surge, 160 Wn.2d 65, 71, 156 P.3d 208 (2007) (plurality opinion)); ROBERT F. UTTER & HUGH D. SPITZER, THE WASHINGTON STATE CONSTITUTION 32 (2d ed. 2013). First, we “determine whether the action complained of constitutes a disturbance of one‘s private affairs.” Puapuaga, 164 Wn.2d at 522. If so, we turn to the second step: “whether authority of law justifies the intrusion. Id. (citing Surge, 160 Wn.2d at 71). “The ‘authority of law’ required by article I, section 7 is a valid warrant unless the State shows that a search or seizure falls within one of the jealously guarded and carefully drawn exceptions to the warrant requirement.” State v. Hinton, 179 Wn.2d 862, 868-69, 319 P.3d 9 (2014) (citing State v. Miles, 160 Wn.2d 236, 244, 156 P.3d 864 (2007)).2 “[W]arrantless seizures are per se unreasonable, and the State bears the burden of demonstrating that a warrantless seizure falls into a narrow exception to the rule.” State v. Doughty, 170 Wn.2d 57, 61, 239 P.3d 573 (2010) (citing State v. Williams, 102 Wn.2d 733, 736, 689 P.2d 1065 (1984)).
Impounding a car is a seizure under our state constitution. State v. Reynoso, 41 Wn. App. 113, 116, 702 P.2d 1222 (1985) (citing State v. Davis, 29 Wn. App. 691, 697, 630 P.2d 938 (1981)). “From the earliest days of the automobile in this state, this court has acknowledged the privacy interest of individuals and objects in automobiles.” City of Seattle v. Mesiani, 110 Wn.2d 454, 456-57, 755 P.2d 775 (1988) (citing State v. Gibbons, 118 Wash. 171, 187, 203 P. 390 (1922)). Mesiani found warrantless sobriety checkpoints unconstitutional under article I, section 7. Id. at 458. Thus, as the State concedes, the first step of the Puapuaga analysis is met.
The State turns to the second step of the article I, section 7 analysis and argues that the seizure (and thus the resulting inventory search) was lawful because the statute provides the authority of law required by our constitution. Whether this is so turns on whether a statute requiring a mandatory warrantless seizure is consistent with the guaranties of article I, section 7. The constitution, of course, cannot be amended by statute, and while the legislature can legislatively protect constitutional rights, it cannot legislate them away. Gerberding v. Munro, 134 Wn.2d 188, 196, 949 P.2d 1366 (1998) (citing Culliton v. Chase, 174 Wash. 363, 373-74, 25 P.2d 81 (1933)); Nathanson, 290 U.S. at 47.
As we recently summarized:
A vehicle may be lawfully impounded (1) as evidence of a crime, when the police have probable cause to believe the vehicle has been stolen or used in the commission of a felony offense; (2) under the “community caretaking function” if (a) the vehicle must be moved because it has been abandoned, impedes traffic, or otherwise threatens public safety or if there is a threat to the vehicle itself and its contents of vandalism or theft and (b) the defendant, the defendant‘s spouse, or friends are not available to move the vehicle; and (3) in the course of enforcing traffic regulations if the driver committed a traffic offense for
which the legislature has expressly authorized impoundment. However, if there is no probable cause to seize the vehicle and a reasonable alternative to impoundment exists, then it is unreasonable to impound a citizen‘s vehicle.
State v. Tyler, 177 Wn.2d 690, 698, 302 P.3d 165 (2013) (emphasis and citations omitted) (citing State v. Williams, 102 Wn.2d 733, 742-43, 689 P.2d 1065 (1984); State v. Houser, 95 Wn.2d 143, 153, 622 P.2d 1218 (1980)).
The State calls language from a Court of Appeals opinion, State v. Singleton, 9 Wn. App. 327, 331, 511 P.2d 1396 (1973), to our attention. Singleton did say in passing that “[a]n impoundment is lawful if authorized by statute or ordinance.” Id. But the court‘s observation was in the context of a discussion of statutes that did not justify the impoundment. Id. at 331-34. Since the statutes did not justify the impoundment (which was found unlawful), there was no need to consider whether the statutes were constitutional. As the Court of Appeals later clarified in Reynoso, “a close reading of Singleton indicates such impoundment must still be reasonable under the circumstances.” Reynoso, 41 Wn. App. at 120 (emphasis added). Determining whether an impoundment is reasonable under the circumstances requires an act of judgment by the officer on the scene.
We have long held that under article I, section 7, authority of law to impound a vehicle after the driver has been arrested exists in two circumstances. See State v. Houser, 95 Wn.2d at 153 (citing State v. Bales, 15 Wn. App. 834, 552 P.2d 688 (1976)). First, a vehicle may be impounded on probable cause that it contains evidence of a crime. Id. at 149. Second, a vehicle may be impounded when there is “‘reasonable and proper justification for such impoundment.‘” Houser, 95 Wn.2d at 147-48 (quoting State v. Montague, 73 Wn.2d 381, 385, 438 P.2d 571 (1968)). “The reasonableness of a search or seizure must be decided in light of the facts and circumstances of the case.” Id. at 148. (emphasis added) (citing South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976)). “The police officer does not have to exhaust all possible alternatives, but must consider reasonable alternatives.” State v. Tyler, 177 Wn.2d at 699 (emphasis added) (citing State v. Coss, 87 Wn. App. 891, 899, 943 P.2d 1126 (1997)). Thus, an impound is lawful under article I, section 7 only if, in the judgment of the impounding officer, it is reasonable under the circumstances and there are no reasonable alternatives. Since the officer did not make that judgment, the impound was unlawful under our state constitution, and the trial court properly suppressed the fruits of the seizure.3
We will briefly touch on some of the remaining arguments. Amicus Washington State Patrol suggests that the fact that probable cause is required for the arrest of the driver is sufficient to render the seizure of the vehicle constitutional. See Br. of Amicus Curiae Wash. State Patrol at 13 (citing State v. Walker, 157 Wn.2d 307, 319, 138 P.3d 113 (2006)). Walker considered the constitutionality of a statute that allowed officers to arrest for certain drug-related misdemeanors that did not occur in the officer‘s presence so long as probable cause existed. 157 Wn.2d at 310. At common law, officers’ power to make such arrests was limited to offenses that occurred in their presence. Id. at 312. We concluded that the statute did not violate article I, section 7 because the existence of probable cause provided the authority of law required for the
The State also contends that
CONCLUSION
González, J.
WE CONCUR:
Fairhurst, C.J.
Stephens, J.
Wiggins, J.
Madsen, J.
Gordon McCloud, J.
Owens, J.
Yu, J.