                                                                    This opinion was
  ynwEv
^ IN CLERKS OFFICE \
                                                                     filed for record
                                                               at 8^ on 10/17/2 c>/?
araecoum;811QE OF vw^i!<ston

    DATE_                                                    ^ Susan L. Carlson
 ^rAlA\kAAA^v                                                   Supreme Court Clerk
       GmEFJUSTKE




            IN THE SUPREME COURT OF THE STATE OF WASHINGTON



     STATE OF WASHINGTON,

                               Petitioner,         No. 96183-2


             V.

                                                   En Banc
     JOEL A. VILLELA,

                               Respondent.         Filed     OCT 1 7 2019

             Gonzalez,J.—Our state constitution protects our right to privacy.

     Const, art. I, § 7. Under our constitution, the State and its agents may not

     disturb our "private affairs . . . without authority of law." Id. "Authority of

     law" generally means a warrant issued by a neutral magistrate or a long

     standing exception to the warrant requirement.

             We are asked today whether the legislature has created "authority of

     law," as understood in our constitution, by passing RCW 46.55.360. Laws

     OF 2011, ch. 167, § 3. Under RCW 46.55.360, officers are required to

     impound a vehicle any time they arrest its driver for driving under the

     influence. This impound is mandatory, regardless of whether the vehicle is
State V. Villela, No. 96183-2


safely off the roadway or whether another person is able to safely drive it

away. The trial court below found that RCW 46.55.360 violates our

constitution because it requires what the constitution allows only under

limited circumstances. We agree. Our constitution cannot be amended by

statute, and while the legislature can give more protection to constitutional

rights through legislation, it cannot use legislation to take that protection

away. Accordingly, we affirm.

                                     Facts


       Late one night in January 2018, Sergeant Paul Snyder stopped a jeep

driven by Joel Villela for speeding. Sergeant Snyder smelled alcohol on

Villela's breath and, after Villela declined a roadside field sobriety test,

arrested him on suspicion of driving while under the influence of intoxicants

(DUI). Sergeant Snyder also impounded Villela's jeep under RCW

46.55.360. Following the dictates of RCW 46.55.360, Sergeant Snyder did

not consider whether there was a reasonable alternative to impounding

Villela's jeep, such as releasing it to one of Villela's two passengers.

       After the jeep was impounded, Sergeant Snyder did an inventory

search of its contents. Sergeant Snyder found sandwich bags, digital scales,

black cloth, pipes, and $340 in cash, all of which he believed was associated

with drug dealing. A search incident to arrest discovered cocaine on Villela
State V. Villela, No. 96183-2


himself. Villela was charged with DUI and possession with intent to deliver

controlled substances.


        Villela moved to suppress the fruits of the inventory search on the

grounds that the mandatory impound of his jeep (which was the only

grounds for the search) was not a lawful seizure under article I, section 7.'

At the hearing, the trial judge noted that this issue had come up several times

before in the Grant County Superior Court, including in his own courtroom.

Villela offered evidence that the costs associated with even a brief vehicle


impound can easily exceed $1,000 and may result in the loss of the vehicle.

The trial judge granted the suppression motion, concluding:

       [Wjhile a state may impose more restrictive standards than the
       constitution requires, it may not, as the Washington legislature did
       when it enacted RCW 46.55.360, expand the scope of police authority
       to [search] and seize under the constitution. See Nathanson v. United
       States, 290 U.S. 41,[54 S. Ct. 11, 78 L. Ed. 159](1933). That statute,
        therefore, is unconstitutional.

Clerk's Papers at 50.

        The parties agreed that there was good cause for immediate review.

RAP 2.4, 2.3(b)(4). Thus, there has been no trial yet. Our commissioner

granted the State's motion for direct review. The Washington State Patrol




' Villela brought other challenges to the search. The trial court analyzed only article I,
section 7. Like the trial court, we do not find it necessary to reach the remaining
arguments.
State V. Villela, No. 96183-2


submitted an amicus brief supporting the State. The American Civil

Liberties Union of Washington, the Washington Defender Association, the

Washington Association of Criminal Defense Lawyers, and the Institute for

Justice filed a joint amicus brief supporting Villela.

                                   Analysis


       "The right to be free from searches by government agents is deeply

rooted in our nation's history and law, and it is enshrined in our state and

national constitutions." State v. Day, 161 Wn.2d 889, 893, 168 P.3d 1265

(2007)(citing U.S. Const, amend. IV; Const, art. I, § 7). "Generally,

officers ofthe State must obtain a warrant before intruding into the private

affairs of others, and we presume that warrantless searches violate both

constitutions." Id. However,"[tjhat presumption can be rebutted if the State

shows a search fell within certain 'narrowly and jealousy drawn [exceptions]

to the warrant requirement.'" Id. at 893-94(second alteration in original)

(quoting State v. Stroud, 106 Wn.2d 144, 147, 720 P.2d 436(1986),

overruled in part by State v. Valdez, 167 Wn.2d 761, 224 P.3d 751 (2009)).

       Villela challenges the constitutionality of the mandatory seizure

statute, RCW 46.55.360. "'We presume statutes are constitutional and

review challenges to them de novo.'" State v. Lanciloti, 165 Wn.2d 661,

667, 201 P.3d 323(2009)(quoting City ofSeattle v. Ludvigsen, 162 Wn.2d
State V. Villela, No. 96183-2


660, 668, 174 P.3d 43 (2007)). As the challenger, Villela bears the burden

of establishing that the statutorily mandated seizure of his vehicle violates

our constitution. Id. (citing Heinsma v. City of Vancouver, 144 Wn.2d 556,

561,29 P.3d709 (2001)).

       RCW 46.55.350".360, also known as "Hailey's Law," was in part a

response to a tragic car accident. Laws of 2011, ch. 167, § 1. It says in

most relevant part:

       (l)(a) When a driver of a vehicle is aiTested for a violation of RCW
       46.61.502 [driving under the influence] or 46.61.504 [physical control
       of a vehicle while under the influence], the vehicle is subject to
       summary impoundment and except for a commercial vehicle or farm
       transport vehicle under subsection (3)(c) of this section, the vehicle
       must be impounded.




              (2)(a) When a driver of a vehicle is arrested for a violation of
       RCW 46.61.502 or 46.61.504 and the driver is a registered owner of
       the vehicle, the impounded vehicle may not be redeemed within a
       twelve-hour period following the time the impounded vehicle arrives
       at the registered tow truck operator's storage facility . . . unless there
       are two or more registered owners of the vehicle or there is a legal
       owner of the vehicle that is not the driver of the vehicle. A registered
       owner who is not the driver of the vehicle or a legal owner who is not
       the driver of the vehicle may redeem the impounded vehicle after it
       arrives at the registered tow truck operator's storage facility.

RCW 46.55.360. The legislature was concerned that under existing law,

those arrested for DUI could "go[] to the tow truck operator's storage

facility and redeem[] the vehicle while still impaired." RCW
State V. Villela, No. 96183-2


46.55.350(l)(b). The statute includes detailed exceptions for commercial

and agricultural vehicles and immunity provisions for officers, government

agencies, and tow truck operators. RCW 46.55.360(l)(c),(3)(c),(4). The

legislature's intent was

             (a)[t]o change the primary reason for impounding the vehicle
       operated by a person arrested for driving or controlling a vehicle
       under the influence of alcohol or drugs. The purpose of impoundment
       under[RCW 46.55.350-.360] is to protect the public from a person
       operating a vehicle while still impaired, rather than to prevent a
       potential traffic obstruction; and

             (b)[r]o require that officers have no discretion as to whether or
       not to order an impound after they have arrested a vehicle driver with
       reasonable grounds to believe the driver of the vehicle was driving
       while under the influence of alcohol or drugs, or was in physical
       control of a vehicle while under the influence of alcohol or drugs.

RCW 46.55.350(2)(emphasis added).

       We use a two-step analysis to determine whether article I, section 7

has been violated. State v. Puapuaga, 164 Wn.2d 515, 521-22, 192 P.3d360

(2008)(citing State v. Surge, 160 Wn.2d 65, 71, 156 P.3d 208 (2007)

(plurality opinion)); Robert F. Utter & Hugh D. Spitzer, The

Washington State Constitution 32(2d ed. 2013). First, we "determine

whether the action complained of constitutes a disturbance of one's private

affairs." Puapuaga, 164 Wn.2d at 522. If so, we turn to the second step:

"whether authority of law justifies the intrusion. Id. (citing Surge, 160
State V. Villela,m. 96183-2


Wn.2d at 71). "The 'authority of law' required by article I, section 7 is a

valid warrant unless the State shows that a search or seizure falls within one

of the jealously guarded and carefully drawn exceptions to the warrant

requirement." State v. Hinton, 179 Wn.2d 862, 868-69, 319 P.3d 9(2014)

(citing State v. Miles, 160 Wn.2d 236, 244, 156 P.3d 864 (2007)).^

"[WJarrantless seizures are per se unreasonable, and the State bears the

burden of demonstrating that a warrantless seizure falls into a narrow

exception to the rule." State v. Doughty, 170 Wn.2d 57, 61, 239 P.3d 573

(2010){cAtmgState v, Williams, 102 Wn.2d 733, 736, 689 P.2d 1065

(1984)).

       Impounding a car is a seizure under our state constitution. State v.

Reynoso, 41 Wn. App. 113, 116, 702 P.2d 1222(1985)(citing State v.

Davis, 29 Wn. App. 691, 697, 630 P.2d 938.(1981)). "From the earliest days

of the automobile in this state, this court has acknowledged the privacy

interest of individuals and objects in automobiles." City ofSeattle v.

Mesiani, 110 Wn.2d 454, 456-57, 755 P.2d 775 (1988)(citing State v.

Gibbons, 118 Wash. 171, 187, 203 P. 390 (1922)). Mesiani iownd

warrantless sobriety checkpoints unconstitutional under article I, section 7.



- A subpoena issued by a neutral magistrate can also provide authority of law. Miles, 160
Wn.2d at 247 (citing State v. Ladson, 138 Wn.2d 343, 352 n.3, 979 P.2d 833 (1999)); see
also State v. Reeder, 184 Wn.2d 805, 819, 365 P.3d 1243 (2015).


                                           7
State V. Villela, ISo. 96183-2


Id. at 458. Thus, as the State concedes, the first step of the Puapuaga

analysis is met.

       The State turns to the second step of the article I, section 7 analysis

and argues that the seizure (and thus the resulting inventory search) was

lawful because the statute provides the authority of law required by our

constitution. Whether this is so turns on whether a statute requiring a

mandatory warrantless seizure is consistent with the guaranties of article I,

section 7. The constitution, of course, cannot be amended by statute, and

while the legislature can legislatively protect constitutional rights, it cannot

legislate them away. Gerberdingv. Munro, 134 Wn.2d 188, 196, 949 P.2d

1366(1998)(citing Culliton v. Chase, 174 Wash. 363, 373-74, 25 P.2d 81

(1933)); Nathanson, 290 U.S. at 47.

       As we recently summarized:

             A vehicle may be lawfully impounded (1) as evidence of a
       crime, when the police have probable cause to believe the vehicle has
       been stolen or used in the commission of a felony offense;(2) under
       the "community caretaking function" if(a)the vehicle must be moved
       because it has been abandoned, impedes traffic, or otherwise threatens
       public safety or if there is a threat to the vehicle itself and its contents
       of vandalism or theft and (b)the defendant, the defendant's spouse, or
       friends are not available to move the vehicle; and (3) in the course of
       enforcing traffic regulations if the driver committed a traffic offense
       for which the legislature has expressly authorized impoundment.

             However, if there is no probable cause to seize the vehicle and a
       reasonable alternative to impoundment exists, then it is unreasonable
       to impound a citizen's vehicle.
State V. Villela, No. 96183-2




State V. Tyler, 111 Wn.2d 690, 698, 302 P.3d 165 (2013)(emphasis and

citations omitted)(citing State v. Williams, 102 Wn.2d 733, 742-43, 689

P.2d 1065 (1984); State v. Houser, 95 Wn.2d 143, 153, 622 P.2d 1218

(1980)).

       The State calls language from a Court of Appeals opinion. State v.

Singleton, 9 Wn. App. 327, 331, 511 P.2d 1396 (1973), to our attention.

Singleton did say in passing that "[a]n impoundment is lawful if authorized

by statute or ordinance." Id. But the court's observation was in the context

of a discussion of statutes that did   justify the impoundment. Id. at 331-

34. Since the statutes did not justify the impoundment(which was found

unlawful), there was no need to consider whether the statutes were

constitutional. As the Court of Appeals later clarified in Reynoso,"a close

reading ofSingleton indicates such impoundment must still be reasonable

under the circumstances1'' Reynoso, 41 Wn. App. at 120 (emphasis added).

Determining whether an impoundment is reasonable under the

circumstances requires an act ofjudgment by the officer on the scene.

       We have long held that under article I, section 7, authority of law to

impound a vehicle after the driver has been arrested exists in two

circumstances. See State v. Houser, 95 Wn.2d at 153 (citing State v. Bales,

15 Wn. App. 834, 552 P.2d 688 (1976)). First, a vehicle may be impounded
State V. Villela, No. 96183-2


on probable cause that it contains evidence of a crime. Id. at 149. Second, a

vehicle may be impounded when there is '"reasonable and proper

justification for such impoundment.'" Houser, 95 Wn.2d at 147-48 (quoting

State V. Montague, 73 Wn.2d 381, 385, 438 P.2d 571 (1968)). "The

reasonableness of a search or seizure must be decided in light of the facts

and circumstances ofthe case."" Id. at 148.(emphasis added)(citing South

Dakota v. Opperman,428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000

(1976))."The police officer does not have to exhaust all possible

alteYnatlves, but must consider reasonable alternatives.''' State v. Tyler, 111

Wn.2d at 699 (emphasis added)(citing State v. Coss, 87 Wn. App. 891, 899,

943 P.2d 1126 (1997)). Thus, an impound is lawful under article I, section 7

only if, in the judgment of the impounding officer, it is reasonable under the

circumstances and there are no reasonable alternatives. Since the officer did


not make that judgment, the impound was unlawful under our state

constitution, and the trial court properly suppressed the fruits of the seizure.^



^ We note that our holding today is consistent with, though not dictated by, our opinion in
In re Impoundment ofChevrolet Truck, 148 Wn.2d 145, 149, 60 P.3d 53 (2002). That
case began as a constitutional challenge to a Washington State Patrol regulation that
mandated seizing the vehicle any time a driver was arrested on a DUI or did not have a
valid license. Id. (citing former WAC 204-96-010 (2001)). Based on the principle of
constitutional avoidance, we held that the rule exceeded the scope of the rule-making
authority vested in the state patrol. Id. at 156. Justice Chambers joined the lead opinion
in full but stressed that "the legislature must have known that, for the poor, impoundment
often means forfeiture. While there are procedures for an owner to recover an impounded


                                            10
State V. Villela, No. 96183-2


       We will briefly touch on some of the remaining arguments. Amicus

Washington State Patrol suggests that the fact that probable cause is required

for the arrest of the driver is sufficient to render the seizure of the vehicle


constitutional. See Br. of Amicus Curiae Wash. State Patrol at 13 (citing

State V. Walker, 157 Wn.2d 307, 319, 138 P.3d 113 (2006)). Walker

considered the constitutionality of a statute that allowed officers to arrest for

certain drug-related misdemeanors that did not occur in the officer's

presence so long as probable cause existed. 157 Wn.2d at 310. At common

law, officers' power to make such an^ests was limited to offenses that

occurred in their presence. Id. at 312. We concluded that the statute did not

violate article I, section 7 because the existence of probable cause provided

the authority of law required for the arrest itself—not some larger seizure of

persons or things. That determination of probable cause requires the very

act ofjudgment that RCW 46.55.360 seeks to eliminate here."^




vehicle, for the poor who cannot afford the towing and storage fees, these procedures
offer little relief." Id. at 164-65 (Chambers, J., concurring).
  Relying on a case where we held a probationer had a lessened expectation of privacy,
the Washington State Patrol suggests that those arrested (but not yet convicted) on DUI
have a lessened expectation of privacy that justifies impounding their vehicles. See Br. of
Amicus Curiae Wash. State Patrol at 16 (citing State v. Olsen, 189 Wn.2d 118, 128, 399
P.3d 1141 (2017)). But there is a world of difference between someone who has been
released under probation conditions, as was the case in Olsen, and someone who has
merely been arrested. We recently declined the State's invitation to hold that those
charged but not yet convicted have a lessened expectation of privacy in Blomstrom v.
Tripp, 189 Wn.2d 379, 408-10, 402 P.3d 831 (2017).


                                            11
State V. Villela, No. 96183-2


       The State also contends that RCW 46.55.360 is constitutional because

"the state's interest in curtailing the 'great threat' of death and injury

attributable to impaired driving outweighs the privacy interests of persons

for whom there is probable cause to arrest for driving or controlling a

vehicle while under the Influence of alcohol or drugs." Reply Br. of Pet'r at

8-9; see also Br. of Pet'r at 7. But that goes to whether the statute violates

due process or is within the general police power of the state to enact. See

generally Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed.

2d 18 (1976); Fields v. Dep't ofEarly Learning, 193 Wn.2d 36, 51, 434 P.3d

999(2019)(plurality opinion). It is not the test to determine whether a

statute is constitutional under article I, section 7. We do not use a balancing

test to determine whether a statute violates article I, section 7. We did not

use it in Miles, where we found the administrative subpoena provisions of

chapter 21.20 RCW (The Securities Act of Washington) violated article I,

section 7, and we did not use it in Walker, where we found the expansion of

officers' power to arrest for misdemeanors that occurred outside their

presence did not. Miles, 160 Wn.2d at 243-44; Walker, 157 Wn.2d at 313

(citing    re Pers. Restraint ofMaxfield, 133 Wn.2d 332, 339, 945 P.2d 196

(1997)(plurality opinion)); see also State v. Reeder, 184 Wn.2d 805, 814,

365 P.3d 1243 (2015). In those cases, we used the two-step analysis



                                        12
State V. Villela,No. 96183-2


described in Puapuaga, 164 Wn.2d at 522. Under that two-step analysis, we

find this statute unconstitutional. It authorizes a disturbance of private

affairs regardless of whether authority of law exists. Since the record

establishes that the officer did not consider reasonable alternatives, the

seizure was unconstitutional, and the trial court properly suppressed its

fruits.


                                  Conclusion


          RCW 46.55.360 waives what our constitution requires before a car

may be seized: either probable cause or a long-standing exception to the

warrant requirement, such as community caretaking. In addition, in the

absence of probable cause, a car may be impounded only after

individualized consideration of reasonable alternatives. Since the officer did


not do that individualized consideration and since there was no probable

cause to seize the vehicle, the seizure was unlawful. Therefore, the fruits of

the inventory search must be suppressed. Accordingly, we affirm and

remand the case to the trial court for further proceedings consistent with this

opinion.




                                       13
State V. Villela, No. 96183-2




                                          <2^
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WE CONCUR:




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