State v. Vanhollebeke

190 Wash.2d 315

412 P.3d 1274

STATE of Washington, Respondent,

v.Justin Dean VANHOLLEBEKE, Petitioner.

NO. 94054-1

Supreme Court of Washington.

Argued September 26, 2017

Filed March 15, 2018

Andrea Burkhart, Two Arrows, PLLC, PO Box 1241, Walla Walla, WA, 99362-0023 for Petitioner.

Randy J. Flyckt, Adams County Prosecutors Office, 210 W Broadway Ave., Ritzville, WA, 99169-1860, Felicity Abigail Mir Chamberlain, Island County Prosecutors Office, PO Box 5000, Coupeville, WA, 98239-5000, Gretchen Eileen Verhoef, Spokane County Prosecutors Office, 1100 W Mallon Ave., Spokane, WA, 99260-0270 for Respondent.

GORDON McCLOUD, J.

¶ 1 Justin Vanhollebeke drove his truck the wrong way down a one-way street. Not surprisingly, an officer stopped him. Vanhollebeke ignored the officer's command to stay in the vehicle, got out and locked the vehicle behind him, left a punched out ignition and apparent drug paraphernalia behind in plain view of the police, and had no key. The police asked Vanhollebeke for consent to search the vehicle. Vanhollebeke refused. A police officer then contacted the truck's owner, received the absent owner's consent and a key to search, and then returned to search the vehicle.

¶ 2 Vanhollebeke was charged with unlawful possession of a firearm found in the truck, and he challenged the legality of the vehicle search. The officer lacked a warrant, and the State relies instead on an exception to the warrant requirement: the owner's consent.

¶ 3 We hold that the present driver's refusal to consent to the search of his or her vehicle must generally be respected. But where, as here, circumstances like a punched out ignition and a driver with no key raise a significant question about whether the driver had any legitimate claim to the vehicle at all, the police may contact the absent owner and then get that owner's consent to search instead.

¶ 4 We therefore affirm the Court of Appeals.

FACTS

¶ 5 Sergeant Aaron Garza of the Othello Police Department observed Vanhollebeke's truck facing the wrong way on a one-way street at an intersection. Clerk's Papers (CP) at 34 (Finding of Fact (FF) 1.1); RP (Jan. 20, 2015) at 11-12; (RP) (May 20, 2015) at 310-11. Garza pulled Vanhollebeke over. RP (Jan. 20, 2015) at 12; RP (May 20, 2015) at 311. Ignoring repeated commands to remain in his vehicle, Vanhollebeke finally exited from the truck and stated that he had locked himself out and did not have a key. CP at 34 (FF 1.2). Finding this behavior unusual, Garza called for backup. RP (Jan. 20, 2015) at 13-15; RP (May 20, 2015) at 314-16. After the other officers arrived, dispatch advised that Vanhollebeke had a suspended license. CP at 35 (FF 1.4); RP (Jan. 20, 2015) at 18.¹ Garza began writing a citation for driving while license suspended. RP (Jan. 20, 2015) at 22.

¶ 6 One of the other officers, Deputy Darryl Barnes, saw a glass pipe containing a white crystal substance on the truck's dashboard and noticed that the ignition had been punched out. CP at 35 (FF 1.5); RP (Jan. 20, 2015) at 103, 106. The officers suspected that the truck might be stolen or contain controlled substances and asked Vanhollebeke for permission to search it. RP (Jan. 20, 2015) at 23, 28. Vanhollebeke refused. Id. at 28.

¶ 7 Garza then tried to reach the truck's registered owner, Bill Casteel. CP at 35 (FF 1.6); RP (Jan. 20, 2015) at 28-29. Garza couldn't reach Casteel by phone, so Barnes drove to Casteel's home, about 20 miles away, instead. CP at 35 (FF 1.6); RP (Jan. 20, 2015) at 30. Garza's police report states that Barnes went to Casteel's home seeking permission to search the vehicle;² it does not say anything about ascertaining whether the vehicle was stolen. CP at 20-21; RP (Jan. 20, 2015) at 58-59. Barnes testified that when he spoke with Casteel:

I told him that we had the gentleman there on a traffic stop and did he know where his truck was and did he know who had his truck and that what I found—what I saw inside the truck and did he have a problem with me searching it.

RP (Jan. 20, 2015) at 109. Casteel said that Vanhollebeke had permission to use the truck, but he also expressed concern about the suspected drug paraphernalia. Id. at 109-110. He consented to a search of the truck and gave Barnes a key. Id. ; CP at 35 (FF 1.7). According to Barnes:

[F]rom what I can remember, [Casteel] was in disgust about his truck being stopped by law enforcement and did say that the gentleman had permission to use the truck, was concerned that I found drug—that I saw what appeared to be drug paraphernalia in the truck.

And I asked, "Hey, can we search your truck? If not, the city would impound it and they would search it, but they're willing to just search it on scene. Are you okay with that?"

He's like, "Sure," gave me the key.

RP (Jan. 20, 2015) at 109-110.³ Casteel was sick and declined Barnes's invitation to accompany him back to the scene. Id. at 110.

¶ 8 When Barnes arrived back at the truck, he gave Garza the key and told him that Casteel had consented to the search. RP (Jan. 20, 2015) at 32. The officers then searched the passenger compartment and discovered a gun under the driver's seat. Id. at 33. The pipe on the dashboard tested positive for methamphetamine, and officers arrested Vanhollebeke for possession of a controlled substance. Id. at 39. Dispatch advised that Vanhollebeke was a convicted felon. Id. at 77-78.

¶ 9 The State charged Vanhollebeke with one count of first degree unlawful possession of a firearm. CP at 3-4; RP (May 19, 2015) at 230-31. Vanhollebeke moved to suppress the fruits of the search, arguing that the warrantless search was unconstitutional. CP at 5-12; RP (Jan. 20, 2015) at 150-51. The trial court denied the motion, CP at 37, reasoning that "there's a reduced expectation of privacy in a borrowed vehicle." RP (Jan. 20, 2015) at 153. The trial court made no explicit findings of fact regarding the officers' motivation for contacting Casteel.⁴ Vanhollebeke was found guilty, sentenced to 34 months confinement, and assessed fees of $1,380. RP (May 21, 2015) at 482-85; CP at 141-46.

PROCEDURAL HISTORY

¶ 10 Vanhollebeke appealed on several grounds, and the Court of Appeals affirmed the conviction.⁵ State v. Vanhollebeke, 197 Wash. App. 66, 68, 387 P.3d 1103 (2016), review granted, 188 Wash.2d 1001, 393 P.3d 360 (2017). The only issue before this court is the constitutionality of the search.

¶ 11 The Court of Appeals began by acknowledging that this case presented a question left open by State v. Cantrell, 124 Wash.2d 183, 875 P.2d 1208 (1994) : whether the driver of a borrowed car can, by expressly objecting to a search, override the consent of another person with "common authority" over the vehicle.⁶ Vanhollebeke, 197 Wash. App. at 72-73, 387 P.3d 1103. It then considered a Virginia case holding that people have limited expectations of privacy in borrowed vehicles because the owner can reclaim possession at any time. Id. at 73-74, 387 P.3d 1103 (citing and quoting Hardy v. Virginia, 17 Va. App. 677, 440 S.E.2d 434 (1994) ). The Court of Appeals adopted that rationale and held that "as bailee, Mr. Vanhollebeke had the actual right to exclude all others from the truck except for Mr. Casteel[, and] [f]or this reason, Mr. Vanhollebeke did not have a reasonable expectation of privacy if Mr. Casteel wanted to search his own truck or allow another person to do so." Vanhollebeke, 197 Wash. App. at 74, 387 P.3d 1103. The Court of Appeals also rejected Vanhollebeke's argument that the Fourth Amendment rule announced in Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed. 2d 208 (2006) —that police may not search a home where one present occupant objects and another present occupant consents—should apply in this vehicle context. Vanhollebeke, 197 Wash. App. at 74-76, 387 P.3d 1103 ; U.S. CONST. amend. IV. It reasoned that Randolph was limited to the situation in which two people have equal authority over a residence (a constitutionally privileged site). Id.

¶ 12 Neither the Court of Appeals in this case nor the Cantrell court analyzed the issue under Washington Constitution article I, section 7. Cantrell, 124 Wash.2d at 190 n.19, 875 P.2d 1208 ; Vanhollebeke, 197 Wash. App. at 75 n.4, 387 P.3d 1103. Both courts held that the briefing was inadequate to present the question of an independent state constitutional analysis. Cantrell, 124 Wash.2d at 190 n.19, 875 P.2d 1208 ; Vanhollebeke, 197 Wash. App. at 75 n.4, 387 P.3d 1103. Vanhollebeke provided an independent state constitutional argument under State v. Gunwall for the first time in his supplemental brief to this court. Suppl. Br. of Pet'r at 17-26. The State submitted supplemental briefing in response.⁷

STANDARD OF REVIEW

¶ 13 We review claims that constitutional rights were violated de novo. State v. Iniguez, 167 Wash.2d 273, 280, 217 P.3d 768 (2009).

ANALYSIS

I. Warrantless searches are presumptively unconstitutional, unless they fit within one of the few, narrow exceptions to the warrant requirement

¶ 14 Under both the Washington and United States Constitutions, warrantless searches are per se unreasonable. Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 29 L.Ed. 2d 564 (1971) ; State v. Hendrickson, 129 Wash.2d 61, 70, 917 P.2d 563 (1996). However, there are a few " ‘jealously and carefully drawn’ exceptions" to the warrant requirement. Arkansas v. Sanders, 442 U.S. 753, 759, 99 S.Ct. 2586, 61 L.Ed. 2d 235 (1979) (quoting Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 2 L.Ed. 2d 1514 (1958) ), abrogated by California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed. 2d 619 (1991). One of those exceptions is for consent, and consent is the exception at issue here. State v. Mathe, 102 Wash.2d 537, 541, 688 P.2d 859 (1984) ("Consent to a search establishes the validity of that search if the person giving consent has the authority to so consent.").

¶ 15 The defendant challenged the warrantless search of the borrowed car over his explicit objection. As the...