                                                                                               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 TIMOTHY CARSELL KETCHUM,                                     UNPUBLISHED OPINION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.



                                                 8
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.




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