Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

STATE OF WASHINGTON,                                             No.  40634-9-II

                             Respondent,

       v.

LARRY DEAN TYLER,                                           PUBLISHED OPINION

                             Appellant.

       Johanson, J.  --  Larry D. Tyler appeals his convictions following a bench trial for unlawful 

possession of a controlled substance and third degree driving with a suspended license.  He 

alleges the trial court erred in denying his motion to suppress evidence seized during an inventory 

search. He contends the inventory search was a mere pretext for an evidentiary search and that an 

inventory search cannot be conducted without consent. Tyler also argues that the trial court erred 

in denying his motion to reopen the suppression hearing and that substantial evidence does not 

support the trial court's findings of facts. We hold that consent was not required, the evidence 

seized was the product of  a lawful inventory search, the trial court properly exercised its 

discretion, and that substantial evidence supports its findings.  Discerning no errors, we affirm. 

No. 40634-9-II

                                            FACTS

       On a narrow and very busy portion of the highway, about a quarter mile before crossing 

the Hood Canal Bridge, Jefferson County Deputy Sheriff Brett Anglin stopped Tyler's car for 

speeding.  As Deputy Anglin approached the car, he noticed that Tyler's passenger was trying to 

hide what looked like an alcohol container between his legs.  Upon contact by Deputy Anglin, 

Tyler identified himself and stated he had a suspended license.  Deputy Anglin confirmed Tyler's 

suspended license, arrested him, and placed him in the patrol car.

       Deputy Anglin asked Tyler for consent to search the car; Tyler refused.  After learning 

that the  registered  owner of the car was incarcerated,  Deputy Anglin suggested that Tyler's 

passenger1 use Tyler's cell phone to find a driver who could move the car.  But despite making 

several calls, the effort was unsuccessful.  Because of the car's unsafe location and the lack of a 

driver,  Deputy Anglin called a towing company to  impound  the car.   Deputy Anglin also 

inventoried the car based on the sheriff office's impound policy and standard practice.  The car 

contained expensive, unsecured stereo equipment.  Near these amplifiers, Deputy Anglin saw a 

clear baggie containing white powder, later identified as methamphetamine.2

       The State charged Tyler with         unlawful possession of a controlled substance, 

methamphetamine, contrary to RCW 69.50.4013(1); use of drug paraphernalia contrary to RCW 

69.50.412(1); and third degree driving with a suspended license contrary to  former  RCW 

1 Tyler's passenger, who is not a party to this appeal, could not drive the car because of his 
suspended license and outstanding warrants.

2 Deputy Anglin also found a small blue metal container that he opened.  It contained a substance 
later identified as heroin but, because the State did not charge Tyler based on his possession of 
this heroin, we do not address it or consider it in our analysis.

                                               2 

No. 40634-9-II

46.20.342(1)(c) (2008).  Tyler moved to suppress the evidence seized from the car arguing that 

the inventory search was a pretext for an evidentiary search and also that our Supreme Court has 

stated that police must obtain consent before conducting an inventory search.  In a memorandum 

opinion, the trial court found that the inventory search was not a pretext for an evidentiary search

and denied the motion.  The same memorandum opinion erroneously listed Tyler's arrest date as

February 11, 2009, instead of November 12, 2009.

       Tyler then moved for reconsideration, arguing, "The issue is not whether the impound was 

reasonable (because it was), but whether, in light of Mr. Tyler's request that the vehicle not be 

searched, Deputy Anglin can do it anyway."    Clerk's Papers (CP) at 32.  Shortly after filing his 

motion for reconsideration, Tyler filed a motion to reopen the suppression hearing based on an e-

mail that Deputy Anglin wrote to his supervisors, more than six months before Tyler's arrest.  In 

that e-mail, Deputy Anglin asserted that an additional K-9 officer would benefit the department

and he attempted to persuade his supervisors to send him to K-9 training.  But, the e-mail begins 

by discussing the United States Supreme Court's ruling in Arizona v. Gant, 556 U.S. 332, 129 S. 

Ct. 1710, 173 L. Ed. 2d 485 (2009).  Tyler argued that language from Deputy Anglin's e-mail 

showed that Deputy Anglin was predisposed to perform an evidentiary search without cause 

under the pretext of an inventory search exception and a possible conspiracy to deprive citizens of 

their constitutional rights.

       The trial court denied both motions, ruling that Tyler's concession that Deputy Anglin

reasonably impounded the vehicle was "dispositive in this matter." CP at 40.  In its memorandum 

opinion, the trial court ruled that if the  vehicle  impound was reasonable,  a deputy has no 

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No. 40634-9-II

alternative but to perform an inventory search.  After considering the stipulated police reports, the 

trial court found Tyler guilty of unlawful possession of methamphetamine and third degree driving 

with a suspended license and not guilty of use of drug paraphernalia.  Tyler appeals.

                                          ANALYSIS

                                     I.  Motion to Suppress 

       Tyler argues that the evidence found during Deputy Anglin's inventory search should be 

suppressed because that search was a pretext for an evidentiary search and because Tyler did not 

give consent to the search.  When reviewing a denial of a CrR 3.6 motion to suppress, we look 

for substantial evidence in the record to support the trial court's findings of fact. State v. Mendez, 

137  Wn.2d 208, 214, 970 P.2d 722 (1999),  overruled on other grounds by Brendlin v. 

California, 551 U.S. 249, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007).        We review the trial 

court's conclusions of law de novo.  Mendez, 137 Wn.2d at 214.

       Article I, section 7 of our constitution states:  "No person shall be disturbed in his private 

affairs, or his home invaded, without authority of law."    A valid warrant, subject to a few 

jealously guarded exceptions, establishes the requisite "'authority of law.'"  State v. Afana, 169 

Wn.2d 169, 176-77, 233 P.3d 879 (2010) (quoting Wash. Const. art. 1, § 7).  One such exception 

to the warrant requirement is an inventory search accompanying lawful vehicle impound.  State v. 

White, 135 Wn.2d 761, 769-70, 958 P.2d 982 (1998); State v. Ladson, 138 Wn.2d 343, 349, 979 

P.2d 833 (1999).  The State always has the burden to establish that an exception applies.  Afana, 

169 Wn.2d at 177.

       When determining whether the fruits of an inventory search following a vehicle 

                                               4 

No. 40634-9-II

impoundment are admissible evidence of a crime, our first question is whether the State can show 

reasonable cause for the impoundment.  State v. Houser, 95 Wn.2d 143, 148, 622 P.2d 1218 

(1980).   Determining the validity of an impoundment is imperative when deciding whether 

evidence discovered during an inventory search is admissible in a criminal case.  Potter v. Wash. 

State Patrol, 165 Wn.2d 67, 83, 196 P.3d 691, 694 (2008).

       In this case, Tyler concedes that Deputy Anglin lawfully impounded3 the vehicle Tyler was 

driving.  Deputy Anglin arrested Tyler for driving with license suspended, leaving the vehicle 

parked on "the busiest part" of the road "less than a food [sic] away from the fog line," a quarter 

of a mile before the Hood Canal Bridge.  Report of Proceedings (RP) at 13.  Deputy Anglin not 

only permitted but, in fact, suggested that Tyler's passenger use Tyler's cell phone to attempt to 

locate a driver.  Our analysis therefore relies on the undisputed validity of Deputy Anglin's lawful 

impound of the vehicle.

       It is well settled that police officers may conduct a "good faith" inventory search following 

a "lawful impoundment" without first obtaining a search warrant.  State v. Bales, 15 Wn. App. 

834, 835, 552 P.2d 688, 689 (1976), review denied, 89 Wn.2d 1003 (1977); State v. Montague, 

73 Wn.2d 381, 385, 438 P.2d 571 (1968).  Unlike a probable cause search, where the purpose is 

3 In Washington, "[a] vehicle may lawfully be impounded if authorized by statute or ordinance.  
'In the absence of statute or ordinance, there must be reasonable cause for the impoundment.'"  
State v. Bales, 15 Wn. App. 834, 835, 552 P.2d 688 (1976) (quoting State v. Singleton, 9 Wn. 
App. 327, 331, 511 P.2d 1396 (1973)), review          denied, 89 Wn.2d 1003 (1977).        RCW 
46.55.113(1) expressly authorizes law enforcement "to impound a vehicle when . . . the driver is 
arrested for [driving with license suspended]."  Potter, 165 Wn.2d at 73.  Additionally, the statute 
provides that an officer may "take custody of a vehicle, at his or her discretion" if it is "unattended 
upon a highway where the vehicle constitutes an obstruction to traffic or jeopardizes public 
safety." RCW 46.55.113(2)(b).

                                               5 

No. 40634-9-II

to discover evidence of a crime, the     purpose of the inventory search is to perform an 

administrative or caretaking function.  State v. Dugas, 109 Wn. App. 592, 597, 36 P.3d 577 

(2001).  The principal purposes of an inventory search are: (1) to protect the vehicle owner's 

property; (2) to protect the police against false claims of theft by the owner; and (3) to protect the 

police from potential danger.4  White, 135 Wn.2d at 769-70 (citing Houser, 95 Wn.2d at 154).  

Our Supreme Court has recognized  that  an additional "valid and important" purpose for the 

inventory search is to protect the public from vandals who might find a firearm or contraband 

drugs.  Houser, 95 Wn.2d at 154 n.2 (citing South Dakota v. Opperman, 428 U.S. 364, 369, 376 

n.10, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976)).

       But the Houser court noted that such purposes will not serve to justify an inventory search 

in each and every case.  Houser, 95 Wn.2d at 154 n.2. Accordingly, the Houser court limited the 

scope of the inventory search to protect against only "substantial risks to property in the vehicle"

and invalidated the inventory search of a locked trunk because no reason existed to believe items 

in the trunk presented a "great danger of theft." Houser, 95 Wn.2d at 155.

       Here, Deputy Anglin and a backup officer5 cataloged two expensive, unsecured stereo 

amplifiers, located in the interior of the car.  As a consequence of Deputy Anglin's routine and 

lawful cataloging, Deputy Anglin saw, in plain view, a clear baggie containing what appeared to 

4 Although White includes this third purpose while citing Houser, 95 Wn.2d at 154 n.2, as further 
discussed above, the Houser  court speculated that protecting the police  and public from  the 
danger of potential contraband in a vehicle would generally not justify an inventory search.

5 Tyler argues that the fact that two officers searched shows lack of good faith.  Although Tyler 
offers authority that generally discusses good faith, he fails to support this argument or otherwise 
persuade us that the number of officers inventorying and recording information is relevant.  RAP 
10.3(a)(6).

                                               6 

No. 40634-9-II

be methamphetamine.  Deputy Anglin lawfully seized this bag in plain view.  State v. Gibson, 152 

Wn. App. 945, 954, 219 P.3d 964 (2009) ("officer may seize evidence without a warrant if he has 

made a justifiable intrusion and inadvertently sights contraband in plain view.").

       Washington courts "regularly" uphold inventory searches following a lawful impoundment 

provided  the search is not a pretext for a general exploratory search and provided police 

conducted these searches according to "standardized police procedures which do not give 

excessive discretion to the police officers." State v. Smith, 76 Wn. App. 9, 14, 882 P.2d 190 

(1994), review denied, 126 Wn.2d 1003 (1995).  The "general" inventory search rule provides:

       When  . . . the facts indicate a lawful arrest, followed by an inventory of the 
       contents of the automobile preparatory to or following the impoundment of the 
       car, and there is found to be reasonable and proper justification for such 
       impoundment, and where the search is not made as a general exploratory search 
       for the purpose of finding evidence of a crime but is made for the justifiable 
       purpose of finding, listing, and securing from loss, during the arrested person's 
       detention, property belonging to him, then we have no hesitancy in declaring such 
       inventory reasonable and    lawful, and evidence of crime found will not be 
       suppressed.

Montague, 73 Wn.2d at 385;  White, 135 Wn.2d at  770 ("The general rule in Washington 

regarding the admissibility of evidence discovered during an inventory search accompanying the 

impoundment of a vehicle was set forth in State v. Montague.").

       Although the general rule does not mention consent, Tyler claims that police must first

obtain consent before conducting an inventory search.      Tyler  relies on dicta from  State v. 

Williams, 102 Wn.2d 733, 743, 689 P.2d 1065 (1984).6         In  Williams, the court considered 

6 Based on Williams, the federal Court of Appeals has stated, "[u]nder Washington law, State 
troopers may not conduct a routine inventory search following lawful impoundment of a vehicle 
without first asking the owner, if present, if he will consent to the search."  United States v. 
Wanless, 882 F.2d 1459, 1463 (9th Cir. 1989).  The Waneless dissent notes, "[T]he majority 

                                               7 

No. 40634-9-II

whether evidence found in petitioner's car was the product of an illegal search incident to arrest 

or alternatively, a routine inventory search.  Williams, 102 Wn.2d at 735-36.  Regarding the 

inventory search, the Williams court rejected the argument that the search was a valid routine 

inventory search because the police officer's decision to impound the vehicle did not satisfy the 

requisite criteria.  Williams, 102 Wn.2d at 743.  After resting its determination on this basis, the 

Williams court commented on consent:

              However, even if impoundment had been authorized, it is doubtful that the 
       police could have conducted a routine inventory search without asking petitioner if 
       he wanted one done.   The purpose of an inventory search is to protect the police 
       from lawsuits arising from mishandling of personal property of a defendant.
       Clearly, a defendant may reject this protection, preferring to take the chance that 
       no loss will occur. See generally United States v. Lyons, 706 F.2d 321, 335 n.23 
       (D.C. Cir. 1983).

Williams, 102 Wn.2d at 743.7

relies exclusively on dictum in Williams to support its position."  Wanless, 882 F.2d at 1468 
(Wright J., dissenting). 
7 Our Supreme Court also commented, in dicta, on the inventory consent issue.  In White, the 
issue was the scope of the search rather than the validity of the search.  White, 135 Wn.2d at 770.  
In White, the police searched a trunk based on longstanding police department procedures and the 
presence of an interior release latch increasing the trunk's accessibility to a "would be thief."  
White, 135 Wn.2d at 771.  Our Supreme Court held that "searches of closed and locked trunks 
are limited to those few situations when manifest necessity exists."  White, 135 Wn.2d at 772.  
After determining that the possibility of theft did not rise to manifest necessity, the White court 
offered its thoughts on consent:
       Further, the record does not indicate White was ever asked whether he would 
       consent to an inventory search, and the State makes no claim that he was.  White 
       was never given the opportunity to reject the protection available and, thus, the 
       search is also suspect under State v. Williams, 102 Wn.2d 733, 689 P.2d 1065 
       (1984).  In Williams, the court held police may not conduct a routine inventory 
       search following the lawful impoundment of a vehicle without asking the owner, if 
       present, if he or she will consent to the search.  Williams, 102 Wn.2d at 743, 689 
       P.2d 1065;  see also United States v. Wanless, 882 F.2d 1459, 1463 (9th Cir.
       1989) (decided on state grounds); Robert F. Utter, Survey of Washington Search 
       and Seizure Law: 1988 Update, 11 U. Puget Sound L. Rev. 411, 578 (1988).        In 

                                               8 

No. 40634-9-II

       The U.S. Supreme Court reasoned that police are not required to obtain the owner's

consent to inventory a properly impounded car because valid purposes of the inventory search 

include alerting officers of potential danger (1) to themselves or (2) to the public from items inside 

the car.  Opperman, 428 U.S. 364, 376 n.10.  Where the court recognizes the purposes of 

protecting police officers (from more than lawsuit based on property loss) and protecting the 

public, the car owner cannot waive an inventory after the proper impoundment of the car.8

       Tyler does not challenge the lawfulness of his arrest; additionally he concedes that Deputy 

Anglin reasonably impounded his friend's car.  Tyler did not own the car, which had expensive, 

unsecured stereo equipment in the backseat.  Deputy Anglin searched the interior of the car in 

order to find, list, and secure the property from loss during Tyler's detention.  See Montague, 73 

Wn.2d at 385.  In cataloging the stereo equipment, Deputy Anglin had plain view of the 

methamphetamine. Under these facts, we decline to hold that a non-owner's lack of consent 

invalidated an otherwise valid inventory search.  See Williams, 102 Wn.2d at 747-48, (Dimmick, 

J., dissenting).

       We agree with the trial court that it would be inappropriate for Deputy Anglin to impound 

the car without inventorying the interior contents. Substantial evidence supports the trial court's 

       Washington, an individual is free to reject the protection that an inventory search 
       provides and take the chance that no loss will occur.
White, 135 Wn.2d at 771 n.11.

8See  United States v. Edwards, 577 F.2d 883, 894 n.23 (5th Cir.) (en banc) (per curiam) 
(alternative holding), cert. denied, 439 U.S. 968 (1978); People v. Clark, 65 Ill. 2d 169, 357 
N.E.2d 798, 800 (1976), cert. denied, 431 U.S. 918 (1977).  But see United States v. Wilson, 636 
F.2d 1161, 1165 (8th Cir. 1980) (alternative holding); State v. Killcrease, 379 So. 2d 737, 739 
(La. 1980); State v. Mangold, 82 N.J. 575, 586, 414 A.2d 1312, 1317-18 (1980); State v. Goff, 
166 W. Va. 47, 272 S.E.2d 457, 460 (1980) (dicta). 

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No. 40634-9-II

finding of fact that the search was reasonable under all the circumstances and not a pretext for an 

evidentiary search. Therefore, we hold that the trial court did not err when it denied Tyler's 

motion to suppress evidence.9  Mendez, 137 Wn.2d at 214. We affirm Tyler's convictions.

                                     II.  Motion to Reopen

       Tyler also argues that the trial court abused its discretion in denying his motion to reopen 

the suppression hearing.  He argues that Deputy Anglin's e-mail implies that Deputy Anglin might

use an inventory search for evidentiary purposes under certain conditions.10  He further argues the 

e-mail is possible evidence of a conspiracy to deprive citizens of their constitutional rights.  "A 

motion to reopen a proceeding for the purpose of introducing additional evidence is addressed to 

the sound discretion of the trial court.  The manner of exercising that discretion will not be 

disturbed on appeal absent manifest abuse.  Abuse of  discretion is discretion exercised on 

untenable grounds for untenable reasons."  State v. Sanchez, 60 Wn. App. 687, 696, 806 P.2d 782 

(1991) (citation omitted).

       Here, the trial court described Deputy Anglin's e-mail as "concerning" but nevertheless 

9 Tyler similarly argues that the trial court erred in denying his motion to reconsider its denial of 
his motion to suppress evidence.  This argument fails for the reasons stated above.

10 Although we agree with the trial court that the first paragraph is concerning, we note that it 
appears less troubling when viewed in context.  The first paragraph reads:
       This unfortunate ruling [Gant, 556 U.S. 332] 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 the use of a K-9.
CP at 36.

                                               10 

No. 40634-9-II

denied the motion to reopen the suppression hearing for the following two reasons:

       [T]o the extent that it could be construed as recommending vehicle impounds in 
       every case where the driver is taken into custody, it is not a basis for reopening the 
       instant case.  First, the Court has found, and the Defendant admits, that the 
       impound in this case was reasonable, and the finding was supported by substantial 
       evidence as the Court has previously noted, and to do an impound without doing 
       an inventory would be inappropriate, if not foolish.  Second, this arrest, impound 
       and inventory took place prior to the publication of the Gant decision, so the ruling 
       in Gant could not have been the motivation for this inventory search.

CP at 41.

       The State correctly concedes that the trial court's second reason is untenable because the 

impound and inventory took place after the Supreme Court published Gant; however, the State

nonetheless asserts that the mistake has no legal effect and the court's first stated reason to deny 

the motion to reopen does not constitute an abuse of discretion.  We agree with the State.   We 

note that, contrary to Tyler's argument, Deputy Anglin's e-mail is not designed to circumvent 

court decisions but to persuade his supervisors to send him to K-9 training.  We also note that 

Deputy Anglin's position within the department does not give him authority to shape his 

department's procedures.  Nor is there evidence to suggest that he has particular influence with 

his supervisors or that they altered police procedures based on the e-mail sent six months prior to 

Tyler's arrest.  Finally, we note that even if the letter was evidence that the officer was 

predisposed to unnecessary impound, here it is agreed the impound was necessary.  These 

circumstances do not support Tyler's argument of a possible conspiracy to deprive citizens of 

their constitutional rights.

       Tyler concedes that the impoundment was reasonable.  In addition, the dangerous location 

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No. 40634-9-II

of the car, the unavailability of the owner or other lawful driver, and the presence of expensive

and unsecured stereo equipment in the interior of the car establish a non-pretextual basis for the 

inventory search.  We hold that the trial court did not deny the motion to reopen on "untenable 

grounds for untenable reasons" nor did it exhibit manifest abuse of discretion by denying Tyler's 

motion to reopen the suppression hearing because the impoundment and resulting inventory 

search were valid and Deputy Anglin's e-mail does not alter the facts supporting those findings.

Sanchez, 60 Wn. App. at 696.

                                    III.  Sufficient Evidence

       Tyler argues that substantial evidence does not support the trial court's findings of facts in 

its memorandum opinion denying his motion to suppress evidence.      Tyler specifically points to 

these errors:  (1) an erroneous date of Tyler's arrest and (2) the erroneous statement that Tyler 

and his passenger "both were engaged in furtive movements." CP at 22.

       An error by the trial court that does not result in prejudice to the defendant is not grounds 

for reversal.  State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997).  Non-constitutional 

error is not prejudicial unless, within reasonable probabilities, the error materially affected the 

trial's outcome.  Bourgeois, 133 Wn.2d at 403.  To the extent that the trial court cited the 

incorrect date when Deputy Anglin stopped Tyler, this error has no legal effect because it had no 

                                               12 

No. 40634-9-II

bearing on the ultimate reason for why the court denied Tyler's suppression motion.  Similarly, 

the trial court's error stating that Tyler acted furtively has no bearing on its conclusions.

       Tyler  also argues that, because portions of Tyler's testimony conflict     with Deputy 

Anglin's testimony, the trial court's findings lack sufficient evidence.  But this argument relates to

the trial court's credibility determinations.  We defer to the trial court, which "had the opportunity 

to evaluate the witnesses' demeanor.  We will review the trial court's inferences and conclusions, 

but not its findings as to credibility or the weight to be given evidence."  State v. Swan, 114 

Wn.2d 613, 637, 790 P.2d 610 (1990) (quoting In re Pers. Restraint of Bugai, 35 Wn. App. 761, 

765, 669 P.2d 903 (1983)).  Here, because we defer to the trial court's credibility determination 

and the weight it accords the evidence, Tyler's argument fails.

       In conclusion, we hold that Deputy Anglin was not required to gain Tyler's consent before 

performing an inventory search, and the trial court properly exercised its discretion when it denied 

Tyler's motions because substantial evidence supports the trial court's findings.  We also hold that 

the factual errors in the memorandum opinion were harmless.

       We affirm.

                                                                Johanson, J.

I concur:

       Van Deren. J.

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No. 40634-9-II

       Armstrong, J. (dissenting)   --  The trial court denied Tyler's motion to reopen the 

suppression hearing in part because it erroneously believed this inventory search occurred before 

Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009).  Because of this 

factual error, the trial court abused its discretion in denying Tyler's motion to reopen.  

       We review a trial court's decision to deny reopening a suppression hearing for an abuse of 

discretion.  A trial court abuses its discretion when its decision is based on untenable grounds.  

State v. Johnson, 90 Wn. App. 54, 69, 950 P.2d 981 (1998) (citing State ex rel. Carroll v. 

Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)).  A trial court's decision based on facts not 

supported by the record is based on untenable grounds.  State v. Rundquist, 79 Wn. App. 786, 

793, 905 P.2d 922 (1995).

       In denying Tyler's motion to reopen, the trial court reasoned:

       First, the Court has found, and the Defendant admits, that the impound in this case 
       was reasonable, and that finding was supported by substantial evidence as the 
       Court has previously noted, and to do an impound without doing an inventory 
       would be inappropriate, if not foolish.  Second, this arrest, impound and inventory 
       took place prior to the publication of the Gant decision, so the ruling in Gant could 
       not have been the motivation for this inventory search.

Clerk's Papers (CP) at 41.

       The State concedes that the second finding is incorrect.  The Supreme Court published 

Gant on April 21, 2009, more than six months before the arrest in this case.  Gant, 556 U.S. 332.  

Deputy Anglin's e-mail was sent on April 23, 2009, two days after the Gant decision.  The deputy 

arrested Tyler on November 12, 2009, more than six months after Gant.  Moreover, the trial 

court's comment that Tyler "admitted that the impound . . .was reasonable" is questionable.  Tyler 

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No. 40634-9-II

conceded that the impound was reasonable in his original motion and, arguably, again in his 

motion to reconsider.  But Tyler did not learn of Deputy Anglin's e-mail until after he moved for 

the trial court to reconsider.  And Tyler did not renew his concession after that or in his briefing 

to us.    

       Deputy Anglin wrote in his e-mail that Gant:

       [H]inders 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 [the car] is safely off 
       of the roadway or not.  It also obviously limits what we can search as well."  

CP at 36.  

       The majority seeks to temper the sting of this by noting that the deputy wrote the message 

only to persuade his supervisors to send him to K-9 school, the deputy had no supervisory 

authority in the department, and there is no evidence he influenced his supervisors to alter police 

procedures.  Majority at 11-12.  But the question is not whether the department changed its 

procedures because of the e-mail, but whether Deputy Anglin utilized his "way-around-Gant" in 

post-Gant traffic stops and, in particular, whether he did so with Tyler.  Moreover, that Deputy 

Anglin makes the statements in a request for K-9 training sheds no light on whether he intends to 

circumvent Gant with impound inventories.  Nothing in this purpose suggests that Deputy Anglin 

was somehow not serious about his "way-around-Gant" proposal. 

       To be valid, the State must prove that a warrantless inventory search was "conducted in 

good faith and not as a pretext for an investigatory search."  State v. Houser, 95 Wn.2d 143, 155, 

622 P.2d 1218 (1980).  And to the extent the "good faith" issue turns on disputed facts, only the 

                                               15 

No. 40634-9-II

trial court can resolve them by weighing the evidence and making findings of fact.  See, e.g., State 

v. Sadler, 147 Wn. App. 97, 123, 193 P.3d 1108 (2008).  

       Here, Tyler testified at the suppression hearing that as soon as he exited the car, Deputy 

Anglin asked if he could search it.  Tyler said he could not.  Deputy Anglin then "went and looked 

in the car." Report of Proceedings (RP) at 32. Tyler also denied that the car was within a foot of 

the fog line and denied that DeputyAnglin ever mentioned impounding and inventorying the car. 

       Deputy Anglin testified that he asked Tyler for permission to search because the passenger 

had acted suspiciously in trying to hide a "beer can" and Tyler appeared to be nervous.  RP at 15, 

17.  Deputy Anglin learned that the "beer can" was actually a can of "Sparks"11 when he got up to 

the vehicle, well before he sought permission to search.  RP at 15.  More telling is the deputy's 

explanation of what he believed the scope of a consent search to be; he testified it would permit 

him to "search different areas of the vehicle which would include the trunk, locked containers if he 

allows us to, cell phones, under the hood." RP at 13.  Deputy Anglin's request for permission to 

search signals his early interest in conducting a broad search of the vehicle.  

       In addition, Deputy Anglin testified that he inventoried the car and found a little blue tin in 

the vehicle, the size of an Altoid container.  The deputy discussed the details of the container and 

further stated that "honestly, I do not know what they're used for other than to hold jewelry or 

illicit drugs." RP at 20.  Deputy Anglin unscrewed the small blue container to look at the 

contents.  Notably,   here,  Deputy   Anglin  did not know     the Jefferson County Sheriff's

Department's standard for inventory procedures and whether police are directed to search closed 

11 Sparks is a malt beverage that contains alcohol.

                                               16 

No. 40634-9-II

containers in the vehicle.  See Florida v. Wells, 495 U.S. 1, 110 S. Ct. 1632, 109 L. Ed. 2d 1 

(1990) (the lack of standardized procedures by police resulted in the exclusion of marijuana seized 

from a locked suitcase discovered by police while conducting an inventory search of a vehicle). 

       These circumstances together with the deputy's e-mail are more than sufficient to warrant 

a further hearing to determine whether something is constitutionally amiss with Deputy Anglin's 

"inventory" of Tyler's vehicle.  I would remand for the trial court to reopen the suppression issue.  

                                            ___________________________________
                                            Armstrong, J.

                                               17