Superior Court County: Whatcom. Superior Court Cause No: 94-1-00830-0. Date filed in Superior Court March 30, 1995. Superior Court Judge signing: Hon. Michael F. Moynihan.
Order Denying Motion for Reconsideration November 22, 1996,
Written by: Judge Agid. Concurred by: Judge Coleman. Dissent by: Judge Becker
The opinion of the court was delivered by: Agid
AGID, J. -- Under the inventory search exception to the warrant requirement, the police may search an impounded vehicle to secure valuables and to protect the police department from false claims of theft. Under Washington law, absent a manifest necessity, the police generally may not search the vehicle's trunk if it is locked because the risk of theft to items in a locked trunk is remote. In this appeal we must decide whether the police exceeded the scope of an otherwise lawful inventory search of Ronald White's car when they opened his trunk using an automatic release button in the car's passenger compartment. We conclude that, when a trunk can be opened from an accessible area of a car's passenger compartment, the risk that property in the trunk will be stolen becomes substantial. The police, therefore, did not exceed the permissible scope of the inventory search when they opened White's trunk and searched its contents. Accordingly, we reverse the trial court's suppression of the evidence found in White's trunk and remand for trial.
In October 1994, Bellingham Police Officer Don Klein pulled Ron White over for running a stop sign. Before Klein stopped White, he reported the car's license plate number to dispatch and learned that the car was registered to a Ms. Whitsett of Sparks, Nevada. White identified himself as Daniel White and gave Klein a date of birth and address. Klein asked White who owned the car. White told him it belonged to his friend Bob Crawson, but that he did not think the registration papers were in the car. Klein asked White to look in the glove compartment anyway. While he was looking, Klein noticed a wallet and asked White whose it was. White said it was his, and Klein asked him to look inside it for his identification. When White opened the wallet, Klein saw a white folded piece of paper. Klein asked him what is was. White told him it was the car's title and handed it to him. The title showed that the car belonged to Whitsett and that she had transferred the title to a Ron White. Klein again questioned White about the car's ownership, and White told him Ron White was his brother in Alaska.
Klein went back to his patrol car and ran a records check on "Daniel L. White," the name White gave him. Klein learned that Daniel White's driver's license had expired the month before and wrote a citation for driving without a valid operator's license. Klein then asked White if he could search the car. White refused, and Klein told him he was going to give him a citation and impound the car. After hearing this, White admitted he was really Ron White, not Daniel White. Klein asked him why he hadn't told him his real name in the first place, and White said he lied because he had several outstanding warrants. Klein ran a records check using White's real name and found out his driver's license had been revoked and that he had six outstanding warrants for failing to appear in court. Klein arrested White, put him in the patrol car and asked dispatch to send a tow truck for the car.
Another officer arrived to assist Klein. They searched the passenger compartment of White's car, including the unlocked glove compartment. There they found several spoons covered with white residue and a glass tube with burned vegetable matter in it. They also saw an automatic trunk release button in the glove compartment, which they pushed to open the trunk. Klein found a fishing tackle box in the trunk, containing drug paraphernalia, green vegetable matter and packets of vacuum-sealed U.S. currency totaling $5,400. In one of the packets, Klein noticed a solid white item about the size of a golf ball, which turned out to be over 20 grams of cocaine. At White's suppression hearing, Klein testified that the police department's inventory policy requires officers to inventory all accessible areas of the car, including the trunk, and to open any unlocked containers.
The State charged White with unlawful possession of a controlled substance with intent to deliver in violation of RCW 69.50.401(a)(1) and driving while his license was suspended or revoked in violation of RCW 46.20.342. White moved to suppress the items Klein found in his trunk. He stipulated that he was lawfully stopped and that Klein had authority to impound his car. He argued only that the police exceeded the scope of the otherwise lawful inventory search when they opened his locked trunk and examined its contents. The trial court agreed and suppressed the evidence Klein discovered in the tackle box. The State appeals.
Under RCW 46.20.435(1), a law enforcement officer may impound a vehicle upon determining that the driver does not have a valid driver's license or is driving with a suspended or revoked license. *fn1 After lawfully impounding a vehicle, the inventory exception to the warrant requirement permits an officer to conduct a warrantless search of the car. State v. Houser, 95 Wash. 2d 143, 153, 622 P.2d 1218 (1980). See also Colorado v. Bertine, 479 U.S. 367, 107 S. Ct. 738, 741, 93 L. Ed. 2d 739 (1987) (inventory searches are a well-defined exception to the warrant requirement). A routine search of a lawfully impounded vehicle is reasonable under the Fourth Amendment when the officer follows standard police practice and the search is not a pretext for an evidentiary search. South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct. 3092, 3100, 49 L. Ed. 2d 1000 (1976).
The trial court held that White's car was lawfully impounded and that the officers conducted the inventory search in good faith. For the first time on appeal, White contends the police lacked authority to impound his car and assigns error to the court's Conclusion that the impound was proper. Under RAP 2.5(a), we may decline to review any claim of error that was not raised in the trial court. An appellant may, however, raise for the first time on appeal a "manifest error affecting a constitutional right." RAP 2.5(a)(3). White contends he can challenge the impound for the first time on appeal because it involves a constitutional issue. To invoke this exception, an appellant must allege more than the existence of a constitutional issue. Rather, he or she must show there was a manifest error affecting a constitutional right. See State v. Lynn, 67 Wash. App. 339, 342, 835 P.2d 251 (1992) (observing that criminal law "is so largely constitutionalized that most claimed errors can be phrased in constitutional terms"). Without citation to RAP 2.5, White makes only a cursory argument that this issue is properly before us. He has not established that the alleged error was manifest or otherwise given us grounds to review this issue.
Furthermore, even assuming White had properly raised and argued this issue under RAP 2.5(a)(3), we would decline to review this portion of the court's judgment. The defense clearly waived any issue involving the legality of the impound at the suppression hearing when it stated: "Let's start with the assumption that the impound is totally proper here. Frankly, I don't have any big quarrel with the argument that [the prosecutor] is going to give, because the statute gives them the right to impound his vehicle; I haven't argued that." *fn2 A defendant may waive even issues of constitutional magnitude, and a "conscious decision not to raise a constitutional issue at trial effectively serves as an affirmative waiver." State v. Walton, 76 Wash. App. 364, 370, 884 P.2d 1348 (1994), review denied, 126 Wash. 2d 1024, 896 P.2d 63 (1995). Because White waived any challenge to the lawfulness of the impound, we address only the issue considered by the trial court: whether the officers exceeded the proper scope of the otherwise lawful impound search when they opened his trunk.
The trial court concluded that the evidence seized from White's trunk had to be suppressed under State v. Stroud, 106 Wash. 2d 144, 152, 720 P.2d 436 (1986), and State v. Houser, 95 Wash. 2d 143, 155-56, 622 P.2d 1218 (1980). As a threshold matter, we disagree that Stroud applies here. Stroud limits the scope of a vehicle search incident to arrest to the passenger compartment. But the exception to the warrant requirement allowing searches incident to arrest is not at issue in this case. As the Supreme Court recently cautioned, courts must keep in mind the distinction between investigatory searches, such as those incident to arrest which are based on probable cause to suspect ...