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State v. Peck

Supreme Court of Washington

September 26, 2019


          GONZALEZ, J.

         We are asked to answer two questions under article I, section 7 of our state constitution: first, whether defendants have standing to challenge the scope of a warrantless inventory search of a vehicle when that vehicle is stolen and, second, whether a proper inventory search extends to opening an innocuous, unlocked container of unknown ownership found in a stolen vehicle associated with defendants who were apprehended while burglarizing a home. We hold that the defendants have automatic standing to challenge the search and that the search of the innocuous container was lawful under these circumstances. We reverse the Court of Appeals and uphold the denial of the motion to suppress.


         On Friday, January 23, 2016, Michael Peck and Clark Tellvik were seen on a security camera, burglarizing a home. The owner of the home was demonstrating her home's new surveillance system to a friend on her phone when she saw the crime in progress. She called 911, and officers arrived at the home within minutes.

         When officers arrived, a Dodge Dakota pickup truck was stuck in the snow in front of the house. Peck and Tellvik were outside the truck, trying to free it from the snow. The officers contacted Peck and Tellvik, frisked them, and detained them. Additional responding officers arrived within minutes, ran the registration of the vehicle, and discovered it was stolen. At this point, it was about 1:21 a.m. The officers arrested Peck and Tellvik for possession of a stolen vehicle.

         After Peck and Tellvik were read their Miranda[1] rights, Peck agreed to speak with an officer. Peck said he had been picked up earlier in the day in the Dodge Dakota pickup by Tellvik. Peck told the officer that he had never seen Tellvik drive the pickup and that Tellvik started it with a screwdriver.

         The officer asked if Peck and Tellvik had gone in any of the buildings or the house. Peck assured the officer that they had not. The officer also asked Peck if he had anything in the vehicle. After some equivocation, Peck said that a cell phone, a car battery, and a small bag of tools belonged to him. Peck told the officer that the vehicle was not running well, so they brought the battery and tools just in case the truck broke down. Peck told the officer nothing else in the truck belonged to him.

         Soon after the officer was done talking with Peck, the homeowner arrived. She confirmed with the police officers that she did not know either Peck or Tellvik and that they did not have permission to be on her property. She also confirmed that her outbuilding, which was open, had been locked when she left. When asked about the battery and the bag of tools Peck claimed, the homeowner said they were hers and that they had been stored in the outbuilding. The officers found a pry bar in the snow beneath the Dodge Dakota's driver's side door and it appeared from the latch and door of the outbuilding that it had been pried open. The officers accompanied the homeowner into the outbuilding and determined that somebody had been inside.

         Peck and Tellvik were taken from the scene. Because the pickup was stolen and stuck on private property, the officers impounded the vehicle and called for a tow truck. Before the tow truck arrived, an officer conducted an inventory search. When asked at trial why he inventoried the vehicle, the officer testified:

A: We want to make sure there's nothing inside that vehicle that the owner could be held responsible for if it's illegal. We don't want to return any drugs, any weapons, anything with that vehicle that shouldn't be in it. We want to go through the inside of the vehicle, make sure there's nothing unsafe, nothing illegal in there.
Q: Okay. All right. So that's one-that's one purpose for it. And, what's another purpose for an inventory search?
A: Another purpose, to inventory what items are in the vehicle. Another purpose also is if you get an occupied stolen to remove the property of the-occupants, so it's not returned to the owner of the vehicle.
Q: Okay. And-when you want to make a list of the stuff, what - what purpose does that serve?
A: To show a list of what was in the vehicle.
Q: Okay. And why would you-why would you care?
A: Just in case someone claims that their diamond ring was left in that car and now it's gone.
Q: Okay. So, -so who does it protect?
A: Everyone.
Q: And by everyone, it protects-the sheriffs office?
A: Sheriffs office, the registered owner, the other folks who have property inside that vehicle, their property isn't given away to someone it's not supposed to.
Q: And how about the tow company?
A: It also protects the tow company, yes.

         Verbatim Transcript of Proceedings (VTP) (May 10, 2016) at 104-05. When asked if searching for something specific, the officer responded:

A: No. The main thing with one of these searches is to make sure you haven't got something dangerous that can go back to the owner. A good example is a case they had in Seattle recently where a stolen Jeep was returned to the owner, and it's full of used hypodermic needles. The last thing I want is to hop into my rig and reach down-seats and get-poked by somebody's (inaudible). And I'd feel the same way-any vehicle that we return to an owner.

Id. at 107. During the inventory search, the officer discovered that the ignition was punched out. The officer saw a "black zippered nylon case" that seemed to hold CDs (compact disks), and opened it. Id. at 418. When asked why he opened it, he responded, "No telling what could be in it." Id. at 108. And he further testified that "I didn't know if it belonged to the owner of the truck. It could very well have registration documents in it. It could have belonged to one of the subjects that were there that night." Id. at 109.

         Inside the black zippered nylon case was packaged methamphetamine, an electronic scale, and a smoking pipe. The State charged Peck and Tellvik with several crimes, including possession of a controlled substance with intent to deliver. Peck and Tellvik moved to suppress the contents of the black zippered nylon case. The trial court denied the motion to suppress, finding the inventory search to be proper and finding no evidence of pretext. See id. at 191-92 (oral CrR 3.6 ruling) ("I didn't see anything out of the ordinary here that would make me think that [the officer] was trying to use the inventory search to try to-bypass a warrant requirement."). Peck and Tellvik were subsequently convicted. Both appealed their controlled substance convictions. The Court of Appeals reversed the trial court's denial of the motion to suppress. We granted review.


         Peck and Tellvik challenge the proper scope of a warrantless inventory search, and the State challenges their ability to make such a claim. This case presents only questions of law, which we review de novo. State v. Valdez, 167 Wn.2d 761, 767, 224 P.3d 751 (2009) (citing State v. Carneh, 153 Wn.2d 274, 281, 103 P.3d 743 (2004)).

         Automatic Standing

         First, we must decide whether the defendants have standing to challenge the search. The State argues Peck and Tellvik do not have standing because a thief should have no privacy interest that overrides that of the true owner. But in our state, a defendant has automatic standing to challenge a search if (1) possession is an essential element of the charged offense and (2) the defendant was in possession of the contraband at the time of the contested search or seizure. State v. Simpson, 95 Wn.2d 170, 175, 622 P.2d 1199 (1980) (plurality opinion). And a defendant has automatic standing to challenge the legality of a seizure '"even though he or she could not technically have a privacy interest in such property.'" State v. Evans, 159 Wn.2d 402, 406-07, 150 P.3d 105 (2007) (quoting Simpson, 95 Wn.2d at 175).[2] The rule applies to searches as well as seizures. See, e.g., State v. Allen, 93 Wn.2d 170, 172-73, 606 P.2d 1235 (1980).

         Peck and Tellvik have automatic standing to challenge the inventory search. The first prong of the test is satisfied because both were charged with possession of a controlled substance with intent to deliver. See RCW 69.50.401(1). The second prong is satisfied because Peck and Tellvik were in possession of the truck up until the time of the search. As such, Peck and Tellvik have automatic standing to challenge the warrantless inventory search of the black zippered nylon case. The dissent claims that we "eviscerate[] automatic standing." Dissent at 15. We do not. Peck and Tellvik have automatic standing to challenge the admission of evidence found during the inventory search. Because we find Peck and Tellvik have automatic standing to challenge the inventory search, we address the propriety of the search.

         Inventory Search

         "Any analysis of article 1, section 7 in Washington begins with the proposition that warrantless searches are unreasonable per se." State v. White, 135 Wn.2d 761, 769, 958 P.2d 982 (1998) (citing State v. Hendrickson, 129 Wn.2d 61, 70, 917 P.2d 563 (1996)). Despite the strict rule, a warrantless search is valid if one of the narrow exceptions to the warrant requirement applies. Id. The exceptions are '"carefully drawn and jealously guarded.'" State v. Byrd, 178 Wn.2d 611, 616, 310 P.3d 793 (2013) (quoting State v. Bravo Ortega, 177 Wn.2d 116, 122, 297 P.3d 57 (2013)).

         One of those narrow exceptions is a noninvestigatory inventory search. Inventory searches have long been recognized as a practical necessity. State v. Tyler, 177 Wn.2d 690, 700-01, 302 P.3d 165 (2013) (citing State v. Gluck, 83 Wn.2d 424, 428, 518 P.2d 703 (1974)). To be valid, inventory searches must be conducted in good faith and not as a pretext for an investigatory search. Id. at 701 (citing State v. Houser, 95 Wn.2d 143, 155, 622 P.2d 1218 (1980)).

         Inventory searches are also limited in both scope and purpose. As we held in Tyler, "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." Tyler, 177 Wn.2d at 701 (citing White, 135 Wn.2d at 769-70).[3] "Unlike a probable cause search and search incident to arrest, officers conducting an inventory search perform an administrative or caretaking function." State v. VanNess, 186 Wn.App. 148, 162, 344 P.3d 713 (2015) (citing State v. Smith, 76 Wn.App. 9, 13, 882 P.2d 190 (1994)). Here, because we are not faced with a locked container, we do not opine on the propriety of law enforcement's opening of a locked container in the context of an inventory search. Peck and Tellvik argue there is no constitutional difference between a locked container and one that is merely closed. Resp't's Suppl. Br. (Tellvik) at 8 (citing State v. Wisdom, 187 Wn.App. 652, 675-76, 349 P.2d 953 (2015); Houser, 95 Wn.2d at 158; White, 135 Wn.2d at 771-72). Having examined the three cases cited, we disagree.

         First, in Houser, the defendant was charged with two counts of possession of a controlled substance. Houser, 95 Wn.2d at 145. The charges were based on drugs found by police after impounding the defendant's vehicle. The police opened the locked trunk and searched a shopping bag, within which was a closed toiletry bag that the police also opened and found drugs. Id. at 146-47.[4]Contending that the evidence obtained during the inventory search should have been suppressed by the trial court, the defendant challenged the propriety of the impoundment as well as the scope of the search. We held (1) the impoundment was unconstitutional, (2) opening the locked trunk in the course of an inventory search was unconstitutional, and (3) opening the closed luggage within the locked trunk was unconstitutional. Houser, 95 Wn.2d at 153-59.

         The third holding is pertinent here: "where a closed piece of luggage in a vehicle gives no indication of dangerous contents, an officer cannot search the contents of the luggage in the course of an inventory search unless the owner consents." Houser, 95 Wn.2d at 158 (emphasis added). When read in context, two things are clear: (1) the Houser court, similar to the Wisdom court, relied heavily on the personal and private nature of luggage and (2) based on the personal and private nature of luggage, the court announced a rule regarding only luggage, not all closed containers. Indeed, in coming to the holding, we framed the issue as "the issue of whether the contents of unlocked luggage found within an automobile may be examined in the course of an inventory search." Houser, 95 Wn.2d at 156-57 (emphasis added). And to be sure, we emphasized the privacy interests in personal luggage by contrasting other types of closed containers and packages "e.g., a kit of burglar tools or a gun case, " which do not implicate the same privacy interests. Houser, 95 Wn.2d at 157. Finally, the closed luggage was removed from the locked trunk of an unlawfully impounded vehicle, and the owner did not consent to the search of his luggage. Here, there was no closed luggage, and the closed nylon case was not found in the defendant's vehicle's locked trunk--it was found in the passenger compartment of a known stolen vehicle with shattered back windows and a punched-out, screwdriver-started ignition that was properly impounded. We did not announce a categorical rule against opening closed containers in the course of an inventory search, and given the vastly different facts, Houser does not control.[5]

         Second, in Wisdom, the Court of Appeals focused on the intimate nature of the closed container in question before finding that "a zipped shaving kit bag found on the seat of a truck" should have been suppressed. Wisdom, 187 Wn.App. at 657. Relying on Houser, the court stated that "Washington courts recognize an individual's privacy interest in his closed luggage, whether locked or unlocked." Wisdom, 187 Wn.App. at 670 (emphasis added) (citing Houser, 95 Wn.2d at 143). The court focused on the privacy interest in a purse "because of the secrets obtained therein" and likened rummaging through a purse to rummaging through a shaving kit. Id. And finally, a "citizen places personal items in luggage in order to transport the items in privacy and with dignity." Id. at 675 (emphasis added). The Wisdom court, similar to the Houser court, placed great emphasis on the intimate nature of the closed shaving kit bag-considerations that do not arise here.

         And third, in White, we considered whether officers could lawfully open the locked trunk of a vehicle during an inventory search. White, 135 Wn.2d at 763-64. Specifically, we considered whether a trunk release mechanism diminished an individual's privacy interest in a locked trunk. Id. at 767. We found it did not. We restricted our holding to law enforcement's opening of the locked trunk and explicitly declined to opine on the opening of a closed container found therein. White, 135 Wn.2d at 772 ("We do not address the impound issue or the search of the closed tackle box because the permissible scope of an article I, section 7 inventory search has been exceeded.").

         We emphasized the significance of the trunk being locked, and held, "Whether a locked trunk is opened by a key or a latch, it is still locked." Id at 767-68. And therefore, "We hold the use of the trunk release mechanism in this case is still the warrantless search of a locked trunk, which brings this case squarely under the [second] holding of Houser." Id.[6] But a locked trunk is not at issue here. As such, like Houser, White does not control. We reject Peck and Tellvik's attempt to treat the nylon case as a locked container.

         Whether this was a proper inventory search turns, in part, on the context here. First, the police knew the vehicle was stolen. Second, Peck and Tellvik were arrested while in the process of burglarizing a home and were observed taking items from the home and its surroundings. Responding officers testified that a purpose in conducting an inventory search of the truck was to determine ownership of both the truck and its various contents. See VTP (May 10, 2016) at 104-05. Third, the search was not pretextual. And finally, the innocuous nature of the container at issue is important: a nylon case that looked like it contained CDs does not possess the same aura of privacy as a purse, shaving kit, or personal luggage. Under these circumstances, it was proper for police to do more than merely inventory the unlocked nylon case as a sealed unit.

         The first purpose of an inventory search is to protect the owner's property. Tyler, 177 Wn.2d at 701. It would undermine this purpose to require the case to be inventoried simply as a closed container. Here, there was no readily available way to know who the owner of the property was. The only people present at the time of the arrest were Peck and Tellvik, and Peck disclaimed ownership of most of the property inside the stolen vehicle. The property could belong to any number of people, including the stolen vehicle's owner, the owner of the burglarized home, or even Peck and Tellvik. In Houser, a case that did not involve a stolen vehicle, we deemed intrusion into a car's unlocked glove compartment "reasonable in light of the valid objectives of an inventory search because documents of ownership and registration are customarily stored in the glove compartment and it often serves as a place for the temporary storage of valuables." 95 Wn.2d at 155. Under these circumstances, neither logic nor experience illuminates a difference between an unlocked glove compartment and an unlocked nylon case.

         The second purpose of an inventory search is to protect bailees from the true owners' claims that their property was damaged after it was taken into police custody. Tyler, 177 Wn.2d at 701. Under these circumstances-where it is clear the car was stolen and the ownership of its contents was unknown-a full accounting of the containers' contents is a reasonable way to safeguard bailees. Additionally, inventorying the contents protects the vehicle's owner from being presented with drugs, guns, or property that simply does not belong to them when the stolen vehicle is returned. Perhaps most importantly, one of the officers testified that the container "could very well have registration documents in it." VTP(May 10, 2016) at 109.

         For practical reasons, an inventory search of a vehicle known to be stolen is simply different from other inventory searches. Cf. State v. Lynch, 84 Wn.App. 467, 477-78, 929 P.2d 460 (1996) (quoting 3 Wayne R. LaFave, Search and Seizure § 7.4(e) at 568 (3d ed. 1996)). The totality of the circumstances reasonably informs the legitimate scope of the inventory. In such cases, there is a need to know who owns the vehicle and who owns its contents in order to do an adequate inventory. We conclude that under these circumstances, a proper inventory search of a stolen vehicle extends to opening unlocked, innocuous closed containers in order to determine ownership. We emphasize that this limited proper purpose cannot be used as a pretext for an investigatory search.[7] Our holding is limited to cases where the circumstances strongly indicate that ownership is unknown. Here, where the vehicle was stolen, Peck and Tellvik were arrested immediately outside of a home that they were currently burglarizing, and the trial court explicitly found no evidence of pretext, the search was proper.[8]


         We hold that under the facts of this case, the search was a lawful inventory search. Accordingly, we reverse the Court of Appeals and uphold the denial of the motion to suppress.

          GORDON McCLOUD, J. (dissenting)

         Are purses, briefcases, backpacks, gym bags, diaper bags, pill boxes, CD (compact disk) holders, and other closed containers subject to warrantless search when the police impound a person's property? Our prior decisions compel us to answer no. Article I, section 7 of the Washington Constitution protects the privacy of those items because they are the people's "private affairs."

         The majority comes to a different conclusion for two reasons: (1) although it claims to adhere to our constitutionally compelled automatic standing rule, the majority effectively holds that these defendants are not entitled to standing because they were accused of stealing the truck containing the sealed container and (2) although it claims to adhere to our prior decisions limiting the inventory exception to the warrant requirement, the majority silently overrules our two controlling cases-White and Houser[1]-barring the police from opening sealed containers (absent evidence of danger) in this situation.

         I cannot agree with the majority's approach. It conflicts with our distinct method of article I, section 7 analysis by replacing it with Fourth Amendment reasonableness analysis. U.S. CONST, amend. IV. And though the majority purports to apply our automatic standing doctrine, it essentially eliminates it for defendants accused of crimes with an element of illegal possession-the very scenario that the automatic standing doctrine was designed to address. This dilutes the article I, section 7 privacy protections to which Washingtonians are entitled.

         I would follow-and reaffirm-our prior decisions that protect Washingtonians' constitutional right to privacy. I therefore respectfully dissent.

         Factual and Procedural History

         I. Law Enforcement's Response to a Reported Theft, the Discovery of a Stolen Vehicle, and the Warrantless Search

         Corporal Zach Green and Deputy Dan Kivi, two Kittitas County sheriffs deputies, responded to a suspected theft in progress at a home in rural Ellensburg. Peck Verbatim Transcript of Proceedings (PRP) (May 10, 2016) at 23-24; Tellvik Verbatim Report of Proceedings (TRP) (May 10, 2016) at 73-74.[2] When the deputies arrived, they discovered two individuals outside the home, along with a pickup truck stuck in the driveway's unplowed snow. PRP (May 10, 2016) at 25-26, 161; TRP (May 10, 2016) at 75-76, 213. The deputies handcuffed the two men and eventually learned that they were Michael Peck and Clark Tellvik. PRP (May 10, 2016) at 166; TRP (May 10, 2016) at 219.

         Two more deputies then arrived. One of them, Deputy Michael McKean, entered the pickup truck's license plate into a law-enforcement database and learned that the truck had been reported stolen. PRP (May 10, 2016) at 30; TRP (May 10, 2016) at 80. Meanwhile, Deputy Kivi and the fourth deputy on the scene, Deputy Mark Rickey, gave Miranda[3] advisories to Peck and Tellvik.

         Peck chose to speak with Corporal Green. PRP (May 10, 2016) at 30-31, 77-78; TRP (May 10, 2016) at 80-81, 129-30. Peck initially told Corporal Green that nothing in the truck belonged to him. PRP (May 10, 2016) at 37-38; TRP (May 10, 2016) at 87-88. However, he then clarified that actually, a cell phone in the cab and a battery and bag of tools in the bed belonged to him. PRP (May 10, 2016) at 37-38; TRP (May 10, 2016) at 87-88. "As far as the inside of the truck, other than his cell phone he told [Corporal Green] that nothing in that truck belonged to him." PRP (May 10, 2016) at 37-38; TRP (May 10, 2016) at 88. Deputy McKean, who would later inventory the truck, did not hear that statement, though. PRP (May 10, 2016) at 109; TRP (May 10, 2016) at 161.

         Tellvik chose to speak to Deputy Rickey. PRP (May 10, 2016) at 77-82; TRP (May 10, 2016) at 128-33. Deputy Rickey did not ask him whether anything in the truck belonged to him. PRP (May 10, 2016) at 77-82; TRP (May 10, 2016) at 128-33.

         While Corporal Green and Deputy Rickey transported Peck and Tellvik to jail, Deputy Kivi and Deputy McKean stayed behind to deal with the truck. Because the truck was stuck in the snow and located on private property, the decision had been made to impound the vehicle. PRP (May 10, 2016) at 41-42; TRP (May 10, 2016) at 91-92.

         While waiting for a tow truck to arrive, Deputy Kivi and Deputy McKean "[methodically" searched the pickup. PRP (May 10, 2016) at 107; TRP (May 10, 2016) at 159. They did so without obtaining a warrant because, as they explained, they believed that Peck and Tellvik did not have a reasonable expectation of privacy in a stolen vehicle. PRP (May 10, 2016) at 42, 49, 115, 118; TRP (May 10, 2016) at 92, 100, 168, 171. But they did not attempt to obtain consent from the person who had reported the pickup truck stolen, either. PRP (May 10, 2016) at 61-62; TRP (May 10, 2016) at 113. According to the deputies, most owners of stolen vehicles are not troubled to learn that the police have searched their vehicle without permission. PRP (May 10, 2016) at 64, 118-19; TRP (May 10, 2016) at 116, 171.

         During the search, Deputy McKean discovered a black zippered nylon case "partially wedged under the [passenger-side] seat." PRP (May 10, 2016) at 108; TRP (May 10, 2016) at 160-61. From the outside, the case looked like a CD case. PRP (May 10, 2016) at 108; TRP (May 10, 2016) at 161. Deputy McKean, who still had not obtained a warrant and still did not know that Peck had implicitly disclaimed ownership of the items inside the vehicle, opened the case. PRP (May 10, 2016) at 109, 115; TRP (May 10, 2016) at 161, 168. He discovered methamphetamine and drug paraphernalia inside. PRP (May 10, 2016) at 109-10; TRP (May 10, 2016) at 162.

         II. Proceedings in the Superior Court

         The State charged Peck and Tellvik with several crimes, including possession of a stolen vehicle and possession of a controlled substance with intent to deliver. Peck Clerk's Papers (PCP) at 212-14 (Second Amended Information); Tellvik Clerk's Papers (TCP) at 219-21 (same); see also RCW 9A.56.068 (criminalizing possession of a stolen ...

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