State Of Washington, V Timothy Carsell Ketchum ( 2019 )

Filed
Washington State
Court of Appeals
Division Two
February 6, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 51062-6-II
Appellant,
v.
TIMOTHY CARSELL KETCHUM, UNPUBLISHED OPINION
Respondent.
WORSWICK, J. — Timothy Carsell Ketchum was charged with possession of a controlled
substance—methamphetamine. The State appeals the trial court’s suppression of
methamphetamine discovered during an inventory search of a vehicle driven by Ketchum. The
State argues that Ketchum did not have standing to contest the search and that even if he did, the
search was a lawful inventory search following a lawful impoundment of the vehicle. Ketchum
argues that, regardless of the lawfulness of the impoundment, law enforcement should have
allowed him to waive civil liability in lieu of allowing an inventory search of the vehicle.
We hold that Ketchum had standing to contest the search, but that the trial court erred in
ordering the evidence to be suppressed because the search was a proper inventory after the
vehicle’s lawful impoundment. Further, because the impoundment of the vehicle was lawful, we
hold that Ketchum could not avoid an inventory search by waiving civil liability. We reverse the
suppression order and remand to the trial court for further proceedings.
No. 51062-6-II
FACTS
On March 12, 2016, Washington State Patrol Trooper Allen Nelson stopped Ketchum for
speeding near Forks around 4:30 P.M. Ketchum told Trooper Nelson that the vehicle he was
driving belonged to his girlfriend who lived in Port Orchard.1 Trooper Nelson discovered that
Ketchum was driving with a suspended license and had five active arrest warrants, including one
for third degree driving with a suspended license. Another law enforcement officer arrived at the
scene for officer safety reasons. Trooper Nelson arrested Ketchum for third degree driving with
a suspended license and for a local warrant.
Ketchum had stopped the vehicle over the fog line on the shoulder of a two-lane portion
of State Route 101. At the time of Ketchum’s arrest, it was raining hard, water was “bouncing
off the pavement,” and there was standing water on portions of the pavement. Verbatim Report
of Proceedings (VRP) (Sept. 14, 2017) at 13. Visibility on the roadway was poor at times.
Based on the arrest, ownership of the vehicle, and weather and road conditions, Trooper
Nelson told Ketchum he had to impound the vehicle because Ketchum was driving with a
suspended license. Trooper Nelson believed that it was not feasible for another law enforcement
officer to move the vehicle because they would have to leave a patrol vehicle unattended and
there were logging trucks on the road at that time of day. Further, bicyclists often used the
shoulder of the road where the vehicle was located, and there was no place to push the vehicle to
get it off the shoulder. Trooper Nelson, believing that the legal owner of the vehicle was over
100 miles away in Port Orchard, did not discuss with Ketchum if anyone could come and move
the vehicle.
1
Port Orchard is approximately 137 miles from Forks.
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No. 51062-6-II
Prior to the vehicle being towed, Trooper Nelson conducted an inventory search of the
vehicle and discovered suspected methamphetamine. After the tow truck arrived, but before it
was hooked up to the vehicle, Trooper Nelson received a call from Sergeant John Ryan.
Sergeant Ryan had spoken with Ketchum’s girlfriend who stated that Ketchum took the vehicle
without her permission, but she did not want to press charges. She also said that Ketchum was
soon to be her ex-boyfriend. She did not give Sergeant Ryan instructions regarding the vehicle
or say anything about not wanting the vehicle impounded.
The State charged Ketchum with possession of a controlled substance—
methamphetamine. Before trial, Ketchum moved to suppress the evidence discovered as a result
of the inventory search, arguing that the impoundment was improper. After conducting a CrR
3.6 hearing, the trial court issued a memorandum opinion, finding the impoundment and
resulting inventory search were unlawful. Accordingly, the trial court suppressed the evidence.
The trial court then entered a minute order stating that the court’s order suppressing the evidence
had the practical effect of terminating the case. The State appeals.
ANALYSIS
I. AUTOMATIC STANDING AND THE EXCLUSIONARY RULE
As a threshold matter, the State argues that Ketchum cannot benefit from the
exclusionary rule because he had no rights to assert regarding the search of his girlfriend’s
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No. 51062-6-II
vehicle.2 The trial court did not address either Ketchum’s standing or whether he could benefit
from the exclusionary rule.
Although both the State and Ketchum raised these issues, the trial court did not address
standing or the exclusionary rule in its memorandum opinion. Even though the trial court did not
address the standing or privacy interests arguments directly, we assume that the trial court
implicitly found that Ketchum had standing to assert a privacy interest because the trial court
ruled on the merits of the motion to suppress.
In 1960, the United States Supreme Court created an “automatic standing” rule. Jones v.
United States, 362 U.S. 257, 265-66, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960), overruled by United
States v. Salvucci, 448 U.S. 83, 85, 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980). The doctrine of
automatic standing provides a defendant automatically has standing to contest an allegedly
illegal search where his possession of the seized evidence is an essential element of the charged
offense. State v. Evans, 159 Wn.2d 402, 407, 150 P.3d 105 (2007). In 1980, the Supreme Court
overturned the automatic standing rule in United States v. Salvucci, 448 U.S. at 83. Washington,
however, continues to adhere to the automatic standing rule based on article I, section 7 of the
Washington Constitution. Evans, 159 Wn.2d at 407. Thus, a driver of a borrowed vehicle
charged with a possessory offense as a result of a search has standing to raise a claim objecting
to that search. State v. Vanhollebeke, 190 Wn.2d 315, 322, 412 P.3d 1274 (2017).
2
In its reply brief, the State argues that the trial court used the wrong legal standard by failing to
address whether Ketchum could benefit from the exclusionary rule. To the extent the State is
raising a different argument for the first time in its reply brief—that the trial court used the
wrong legal standard—we decline to consider it. RAP 10.3(c).
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No. 51062-6-II
Here, Ketchum was charged with the possessory offense of possession of a controlled
substance—methamphetamine, that was found during a search of the borrowed vehicle he was
driving. Consequently, he had standing to contest the search.3
II. IMPOUNDMENT AND INVENTORY SEARCH
The State argues that the trial court erred when it granted Ketchum’s motion to suppress.
Specifically, the State argues that the impoundment and resulting inventory search were lawful
because Trooper Nelson considered the requisite reasonable alternatives to impoundment.4 In
addition to arguing that the search was unlawful, Ketchum argues that even if the impoundment
was lawful, he should have been given the opportunity to waive civil liability prior to the
inventory search. We hold that the trial court erred in suppressing the evidence because the
impoundment and inventory search were lawful and because Ketchum could not have avoided an
impound search by waiving civil liability.
A. Legal Principles
When reviewing a suppression order, we consider whether substantial evidence supports
the trial court’s findings of fact and whether those findings of fact support the conclusions of
law. State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009). Substantial evidence exists
when a fair-minded person is persuaded of the truth of the stated premise. Garvin, 166 Wn.2d at
3
Because we find the trial court erred by excluding the evidence, we do not reach the State’s
argument that, even if the search was improper, Ketchum may not benefit from the exclusionary
rule.
4
Ketchum argues that the State failed to assign error to any findings of facts, and therefore, they
are all verities on appeal. This is incorrect. The State assigns error to the trial court’s “finding
that Trooper Allen [Nelson] did not consider alternatives to impoundment of the vehicle.” Br. of
Appellant at 2.
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No. 51062-6-II
249. On a motion to suppress, we review a trial court’s conclusions of law de novo. State v.
Baird, 187 Wn.2d 210, 218, 386 P.3d 239 (2016).
Because we presume that a warrantless search violates the Fourth Amendment to the
United States Constitution and article 1, section 7 of the Washington Constitution, the State must
prove the search fits within one of the narrowly drawn exceptions to the warrant requirement.
Baird, 187 Wn.2d at 218. One such exception is a noninvestigatory, good faith inventory search
in conjunction with the impoundment of a vehicle. State v. Tyler, 177 Wn.2d 690, 700-01, 302
P.3d 165 (2013). An inventory search is lawful only if the impoundment of the vehicle is also
lawful. State v. Duncan, 185 Wn.2d 430, 440, 374 P.3d 83 (2016).
Impoundment is lawful when (1) the vehicle is evidence of a crime, (2) the officer is
exercising a community caretaking function, or (3) “the driver committed a traffic offense for
which the legislature has expressly authorized impoundment. Tyler, 177 Wn.2d at 698. When a
law enforcement officer has a lawful reason to impound a vehicle for any of the three purposes,
he or she may only impound that vehicle if no reasonable alternatives to impoundment exist.
Tyler, 177 Wn.2d at 698. An officer need not consider all possible alternatives to impoundment
and reasonableness must be assessed by the facts of each case. Tyler, 177 Wn.2d at 699.
Under the community caretaking function, an officer, prior to impoundment, must
determine that (a) the vehicle must be moved because the vehicle is a threat to public safety or
the vehicle is at risk of vandalism or theft of its contents, and (b) “the defendant, the defendant’s
spouse, or friends are not available to move the vehicle.” Tyler, 177 Wn.2d at 698. However,
when an officer impounds a vehicle for a reason other than the community caretaker function,
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No. 51062-6-II
the State is not required to establish that the driver’s spouse or friends are not able to move the
vehicle. State v. Froehlich, 197 Wn. App. 831, 840, 391 P.3d 559 (2017).
Our courts have held that when an officer was acting under a statutory authority to
impound because the driver had a suspended license, the owner of the vehicle was not at the
scene, and there was no inquiry into whether someone could come move the vehicle, the
impoundment and resulting inventory search were lawful. State v. Peterson, 92 Wn. App. 899,
902-03, 964 P.2d 1231 (1998). In Peterson, the defendant was pulled over while driving a
friend’s vehicle. Peterson, 92 Wn. App. at 900. The defendant was the sole occupant of the
vehicle. Peterson, 92 Wn. App. at 901. Learning that the defendant’s license was suspended,
the officer impounded the vehicle, searched it, and found a controlled substance. Peterson, 92
Wn. App. at 900. The officer did not attempt to contact the vehicle’s owner before deciding to
impound it. Peterson, 92 Wn. App. at 901. The court held that the impoundment was lawful
because there were no passengers to remove the vehicle and the vehicle “owner was not present
to authorize a licensed and insured driver to remove the vehicle or to authorize leaving the
vehicle by the side of the road.” Peterson, 92 Wn. App. at 903.
B. Impoundment of the Vehicle Driven by Ketchum
Here, the trial court found, “The trooper told Ketchum he had to impound his vehicle
because he was driving with license suspended and had warrants for driving with license
suspended.” Clerk’s Papers (CP) at 12. This finding specifies that Trooper Nelson was
impounding according to statutory authority and not based on the community caretaking
function. The facts here align with the statutory authority exercised in Peterson. See Peterson,
92 Wn. App. at 902-03. As a result, Trooper Nelson was not obligated to meet the additional
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No. 51062-6-II
requirements of inquiring about or contacting a spouse or friend to remove the vehicle because
the community caretaking function was not implicated. Rather, here, the State needed to prove
only that Trooper Nelson considered alternatives to impoundment and made the decision to
impound after determining none of the alternatives were reasonable.
The trial court noted that “[t]he trooper testified he had no reasonable alternatives to
impounding the vehicle, since it would have been unsafe to leave the vehicle where it was due to
hazardous road conditions and it would have been unsafe for the officers to attempt to move the
vehicle.” CP at 13. Put another way, the trial court found that Trooper Nelson considered two
alternatives: (1) leaving the vehicle on the side of the road and (2) moving the vehicle with his
fellow officer. After considering the road and weather conditions and the time of day, Trooper
Nelson concluded leaving the vehicle on the side of the state highway was unreasonable.
Further, because only two officers were available, it was unreasonable for the officers to move
the vehicle themselves. Doing so would leave a law enforcement vehicle unattended and it was
not feasible to fit two officers plus Ketchum in one law enforcement vehicle. After considering
the options, Trooper Nelson concluded no reasonable alternatives to impoundment existed.
The trial court concluded that “[h]ere the record does not establish that the trooper
considered alternatives to impoundment, since he did not ask Mr. Ketchum about the availability
of anyone he might know who could move the vehicle.” CP at 14-15. Although a reasonable
alternative could have also included asking Ketchum for the name of someone in the vicinity
who could move the vehicle, see State v. Hardman, 17 Wn. App. 910, 914, 567 P.2d 238 (1977),
the State was not required to do so here. An officer need not consider all possible alternatives to
impoundment, and we assess reasonableness by the facts of each case. Tyler, 177 Wn.2d at 699.
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No. 51062-6-II
Here, the trial court misapplied the law by using the incorrect legal standard. The trial
court concluded that contacting someone to move the vehicle is a required reasonable alternative
for a statutorily authorized impoundment. This conclusion impermissibly applies a community
custody standard to statutory authority to impound, a separate category of impoundment.
Moreover, the correct test—that the officer need only consider reasonable alternatives before
impounding the vehicle—is met. We hold that the trial court’s conclusions regarding reasonable
alternatives in this case erroneously apply the law.
Trooper Nelson, acting under statutory authority to impound the vehicle, considered
alternatives to impoundment but ultimately concluded that impoundment was the only
reasonable option. Thus, the findings of fact show that the motion to suppress should not have
been granted on these grounds.
C. Waiver of Civil Claim as a Reasonable Alternative5
Ketchum argues, as an alternate basis to affirm the trial court, that “absent the officer first
giving either the defendant or the owner of the vehicle the option of waiving a [civil] claim
against the state, there is no legal basis to perform an inventory search even if there is a basis to
impound the vehicle.” Br. of Resp’t at 11. We disagree.
Although the purpose of an inventory search is to insulate law enforcement from civil
liability, “the car owner cannot waive an inventory [search] after the proper impoundment of a
car.” State v. Tyler, 166 Wn. App. 202, 212-13, 269 P.3d 379 (2012).
5
Ketchum did not raise this issue in the trial court, but asserts that he can raise this issue for the
first time on appeal because we may affirm on any grounds under RAP 2.5(a).
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No. 51062-6-II
Setting aside the fact that Ketchum provides no argument or authority that he, as a mere
possessor, had the legal ability to waive the owner’s claims, Ketchum’s argument blends the
requirements of an impoundment with the resulting inventory search. Because the car was
properly impounded, neither Ketchum nor the owner of the car was entitled to waive civil
liability in lieu of an inventory search. As a result, Trooper Nelson was not required to provide
an opportunity to waive a civil claim and Ketchum’s argument fails.
Trooper Nelson properly impounded the vehicle and lawfully conducted an inventory
search. As a result, we hold that the trial court erred when it ordered the evidence suppressed.
We reverse the suppression order and remand for further proceedings.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Worswick, J.
We concur:
Lee, A.C.J.
Sutton, J.
10