                                                                              tte   tr)c)
IN THE COURT OF APPEALS OF THE STATE OF WASHING*
                                               .
                                                                                        -ri
THE STATE OF WASHINGTON,                      )                                co   *-CI
                                                                                           rei
                                              )         No. 76221-4-1                  cPrn0
                     Respondent,              )                                        =7>

                                              )         DIVISION ONE                   Glu)
                                                                                •
              v.                              )
                                              )         UNPUBLISHED OPINION
JONATHAN STEPHEN WOOD,                        )
                                              )
                     Appellant.               )         FILED: June 18, 2018
                                              )
      APPELWICK, C.J. — Wood appeals his conviction for possession of a

controlled substance with intent to manufacture or deliver, challenging the denial

of his motion to suppress evidence obtained from the search of his car. He claims

that the search was not a lawful inventory search prior to impounding his vehicle.

He also argues that the trial court exceeded its statutory authority in imposing a

$3,000 VUCSA1 fine, and in imposing community custody conditions that were

unconstitutionally vague and not crime-related. We reverse.

                                     FACTS

      Around 6:30 a.m. on April 17,2015, Washington State Patrol Trooper Anson

Statema was on Interstate 5 (1-5) when he heard a 911 report that a blue Hyundai

Sonata had been involved in a hit and run collision. Statema saw a vehicle

matching that description and pulled the car over to the right shoulder of 1-5, just

south of the 44th Street onramp. The car was approximately two to three feet from



       1 Violation of the Uniform Controlled Substances Act, chapter 69.50 RCW.
No. 76221-4-1/2


the fog line and in a tow zone. Statema spoke with the vehicle's driver, Jonathan

Wood.

       Wood initially denied being involved in the hit and run. While Statema was

talking with Wood, Trooper Steve Palm arrived at the scene with the victim of the

hit and run. Palm was the lead investigator for the collision, and Statema testified

that he was assisting Palm at the scene. The other driver identified Wood's vehicle

as the car that hit him. At 6:55 a.m., Statema saw what he believed was fresh

damage on the front of Wood's car, and asked Wood to exit the vehicle so that he

could show it to him. Wood admitted that he had been in an accident and left

because he was late for work. Palm then arrested Wood for hit and run, put him

in the back of his police car, and read him his Miranda2 rights.

       At 6:59 a.m., after Wood was arrested, Statema entered Wood's vehicle to

conduct what he later claimed was an inventory search prior to impounding.

Statema testified that he was looking for valuable items such as electronics to

preserve them for Wood. Statema saw a cord running into the center console, so

he looked inside it to see if the cord was connected to an electronic device. Inside

the console Statema saw pills of various colors wrapped in individual packages,

with about 10 pills in each "baggie." Believing that he had found evidence, Statema

ended his inventory search and notified Trooper Palm.

       At 7:07 a.m., Statema asked Palm if he was going to tow the vehicle. Palm

told him, "Not right now." Statema ran Wood's license and discovered that it had

been revoked in the first degree, and that he was required to have an ignition

      2 Miranda   v. Arizona, 384 U.S. 436,86 S. Ct. 1602, 16 L. Ed. 2d 694(1966).

                                            2
No. 76221-4-1/3


interlock.   Palm requested a tow truck at 7:16 a.m., and the vehicle was

subsequently towed to the State Patrol evidence locker in Marysville.

       On April 18, Palm obtained a search warrant for Wood's car based on the

suspected contraband. While searching the car, Palm found several controlled

substances, $997 in cash, a digital scale with drug residue, and two cell phones.

       Wood was charged with possession of a controlled substance with intent to

manufacture or deliver. At a CrR 3.6 hearing, he moved to suppress the evidence

that was obtained from the search of his vehicle. He argued that the impoundment

of his car was unlawful because the troopers did not explore any reasonable

alternatives. He further claimed that the inventory search was unlawful because it

"had nothing to do with taking inventory of an impounded vehicle." He asserted

that the search was before troopers discovered his license was revoked in the first

degree, and before they decided to impound the vehicle.

       The trial court denied Wood's motion to suppress evidence. It found that

the initial search of Wood's car was "to turn off the vehicle, to retrieve a phone for

the defendant. . . . [S]o it was a mixed bag . . . of both a community caretaking

function and an inventory search." It stated,

      [T]he decision to impound the vehicle and not release it to somebody
      else was perfectly justified under these circumstances. First, the
      car's running; secondly,the video shows clearly that it is a dangerous
      area. Cars are passing close to this vehicle in the travel portion of
      the freeway to the left of where the vehicle was stopped and parked.
      It was illegally parked because it's a 24-hour tow zone meaning that
      vehicles left there are subject to tow at any time.
It recalled that both troopers testified that "they may choose not to impound a

vehicle, even where it's in a tow zone. They may choose to contact someone to


                                             3
No. 76221-4-114


come get the vehicle." But, it found that the troopers' decision to impound the

vehicle "was perfectly authorized, if not compelled, and certainly justified by the

circumstances." It stated further that there was "no support in the evidence" that

the search was a pretext to search for drugs.

         Following a stipulated facts bench trial, Wood was convicted of possession

of a controlled substance with intent to manufacture or deliver. The court imposed

a standard range sentence of 30 months of confinement and 12 months of

community custody. Wood appeals.

                                   DISCUSSION

  I.     Suppression of Evidence

         Wood argues that his conviction must be reversed because the evidence

supporting it was discovered in violation of his constitutional right to be free from

unreasonable searches and seizures. First, he asserts that the impoundment of

his vehicle was unlawful because the troopers did not explore reasonable

alternatives. Then, he argues that the inventory search was unlawful because it

was an illegal impounding of his car, and the claimed inventory search was

pretextual.

       A. Standard of Review

          When reviewing the denial of a suppression motion, an appellate court

determines whether substantial evidence supports the challenged findings of fact

and whether the findings support the conclusions of law. State v. Garvin, 166

Wn.2d 242, 249, 207 P.3d 1266(2009). Evidence is substantial when it is enough

to persuade a fair-minded person of the truth of the stated premise. Id. This court


                                             4
No. 76221-4-1/5


reviews conclusions of law from an order pertaining to the suppression of evidence

de novo. Id.

   B. Impoundment

       Warrantless searches of vehicles are per se unreasonable, in violation of

article 1, section 7 of our state constitution, subject to a few exceptions that are

narrowly drawn. State v. Tyler, 177 Wn.2d 690, 698, 302 P.3d 165 (2013). One

of these exceptions is a valid inventory search of an impounded vehicle. Id. at

698, 701. This is the exception that the State maintains justifies the search of the

car that Wood was driving. The State bears the burden of establishing that this

exception applies. Id. at 698.

       Our Supreme Court has listed specific circumstances for when 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.
Id.(emphasis omitted).

       The State contends that Wood's car was lawfully impounded under the

second and third circumstances. First, it contends that the troopers impounded

Wood's car under the community caretaking function, because it presented a

threat to public safety. It states that the car was "parked on a narrow shoulder" in



                                            5
No. 76221-4-1/6


a "dangerous" area, at the end of a freeway onramp, where cars travelling at

freeway speeds passed by the car very closely. Then it states that Wood could

not move his vehicle because he was being arrested, and, without citation to the

record, it states that "[n]o one else was immediately in the area who could move

the vehicle once the investigation had been completed."

       Second, the State argues the troopers validly impounded the car because

they were enforcing traffic regulations and Wood committed a traffic offense for

which the legislature has expressly authorized impoundment. It cites RCW

46.55.113(2)(b) and (d). RCW 46.55.113(1) states that whenever the driver of a

vehicle is arrested for a violation of driving with an invalidated license, the vehicle

is subject to summary impoundment. The statute also provides:

              (2) In addition, a police officer may take custody of a vehicle,
       at his or her discretion, and provide for its prompt removal...



             (b) Whenever a police officer finds a vehicle unattended upon
       a highway where the vehicle constitutes an obstruction to traffic or
       jeopardizes public safety



             (d)Whenever the driver of a vehicle is arrested and taken into
       custody by a police officer.
RCW 46.55.113(2)(b) and (d).

       But, if there is no probable cause to seize the vehicle, impoundment is

inappropriate when reasonable alternatives exist. Tyler, 177 Wn.2d at 698-99. In

Tyler the court stated:

       The police officer does not have to exhaust all possible alternatives,
       but must consider reasonable alternatives. Reasonableness of an


                                              6
No. 76221-4-1/7

      impoundment must be assessed in light of the facts of each case.
      However, facts subsequent to impoundment do not bear on whether
      the impoundment was reasonable.
Id. at 699 (emphasis added)(citations omitted). There, the court found that the

community caretaking function was "plainly implicated" because, if not impounded,

the vehicle would have been left unattended very close to a very busy, congested

single lane section of the highway. jcj. And, the officer explored alternatives,

including asking Tyler to loan his cell phone to the car's passenger to attempt to

locate someone to move the car. Id. at 700. Our Supreme Court concluded that

the impoundment was lawful, because the vehicle threatened public safety if left

where it was,the driver had been arrested, and the officer had explored reasonable

alternatives to impoundment. Id.

      This case differs from Tyler, but closely resembles State v. Froehlich, 197

Wn. App. 831, 391 P.3d 559 (2017). In Froehlich, after hitting another car, the

defendant left the scene of the car accident in an ambulance. 197 Wn. App. at

834-35. There was no evidence in the record that the officer at the scene or the

one who accompanied Froehlich to the hospital asked her what she wanted to do

with the car. Id. at 835, 839. The trooper at the scene decided to impound the

vehicle and, while conducting an inventory search, discovered what he suspected

was narcotics. Id. at 836.

       In its analysis of the impoundment, Division II discussed the community

caretaking rule:

              How strictly the second community caretaking requirement
      stated in Tyler should be applied is somewhat unclear. We can
      conceive of circumstances where it would be reasonable for an
      officer to impound a vehicle even though he or she may not know the


                                           7
No. 76221-4-1/8

      availability of the defendant or the defendant's spouse or friends to
      remove a vehicle or when removal by those persons would be
      impractical. However, Tyler suggests that an officer should at least
      consider whether the defendant can make arrangements for
      someone to remove the vehicle before impounding it. Otherwise,the
      second community caretaking requirement would be superfluous.
Id. at 839. And, in discussing the "reasonable alternatives" rule to statutory

impoundment, the court stated, "One of the alternatives that an officer should

consider is asking the driver if arrangements can be made for someone to move

the vehicle."   Id. at 845. The court held that police unlawfully impounded

Froehlich's car under the community caretaking function, because there was no

evidence that the officer considered the defendant's ability to arrange for the car

to be moved from the scene. Id. at 841. And, it held that even though the

impoundment was authorized by statute, it was unlawful because the officer did

not consider reasonable alternatives. Id. at 845-46.

       Likewise here, neither trooper asked Wood what he wanted to do with the

car or discussed any alternatives to impoundment with him before Statema entered

the vehicle to search. Both troopers also testified that they did not consider

alternatives to impoundment appropriate. Statema testified that he did not think,

in this circumstance, it was appropriate to call another driver to retrieve the car,

explaining,

      Typically, the times where we would consider having another driver
      come would be a situation where a person's license was simply not
      valid, if it was suspended third degree, or lower degree of
      suspension. If they were being-- if there was some other reason that
      they couldn't drive, I don't know what those would be, but just other
      circumstances. But, generally speaking, hit and run collisions where
      that person is a registered owner and license revocations are ones
      where that we would pretty much always impound the vehicle unless
      there is some large circumstance against it.


                                            8
No. 76221-4-1/9


He also testified that he did the inventory search before he checked the status of

Wood's license and discovered that it was revoked in the first degree and learned

that Wood was required to have an ignition interlock. When asked if he would

"have considered having someone else come to the scene" to remove the vehicle,

Trooper Palm answered "no" stating,

      Because of the time of the day, rush hour, like I've said before, 24-
      hour tow zone. That area that we're in, we're bringing more people
      to the scene, that means more people out of their cars on the narrow
      shoulder.

As in Froehlich where the officer spoke with the defendant on several issues but

never asked her about removing the car, here both troopers spoke with Wood, but

never asked him what he wanted to do with the car. Trooper Statema entered

Wood's car and began searching a mere four minutes after he asked Wood to step

out of the car, and only one minute after Wood was arrested.

      The State argues that the impoundment was reasonable under the

community caretaking function for two main reasons. First, it contends that "unlike

in Froehlich[,] the defendant's vehicle did present an imminent danger to the

public." In Froehlich, the car was on the shoulder of a highway, 100 feet from a

"very busy intersection," and one to two feet from the fog line. 197 Wn. App. at

834-35. Here, Wood's car was on the shoulder of 1-5, just south of the 44th Street

onramp, and approximately two to three feet from the fog line. The State's

argument is unpersuasive that Wood's car posed a danger greater than that of the

car in Froehlich. And, even if Wood's car was in a more dangerous location than




                                            9
No. 76221-4-1/10


the vehicle's location in Froehlich, that does not negate the officers' duty to

consider reasonable alternatives to impoundment under Tyler.

       Second, the State argues that the officer's entry into Wood's car was also

justified because the car was running when Wood was arrested. There is no

mention of this in the written findings of fact and conclusions of law, but the State

asks this court to consider this justification anyway. A trial court's oral ruling "may

be considered in interpreting the findings of fact and conclusions of law, but they

cannot be considered as the basis for the trial court's judgment and sentence."

State v. Mallory, 69 Wn.2d 532, 533, 419 P.2d 324 (1966). The trial court

mentioned the reasoning in passing in its oral ruling:

       But the fact that the police have discretion doesn't mean that the
       exercise of their discretion here to arrest[Wood]for hit and run and
       to impound his vehicle is somehow unlawful. And that doesn't mean
       that because the police happened to find drugs when they're looking
       in the console to retrieve his phone or to see if they can get a key fob
       to turn the vehicle off that somehow what is purported to be an
       inventory search isn't an inventory search.

              It's also probably a part of a community caretaking function.
       And later, the court commented "the car's running" and that the "initial

search, as I mentioned, was to turn off the vehicle, to retrieve a phone for the

defendant."

       Statema's testimony at the suppression hearing did not establish that he

entered the car to look for the key fob to turn off the car. He testified that, upon

entering the car he

       [s]tarted looking for electronic devices, first of all. I didn't see a GPS
       up on the console or anything like that. I did notice that the vehicle
       was a push start type of vehicle.


                                              10
No. 76221-4-1/11


And, Statema testified that he did not know if the electronic key fob "was in the car

or if Mr. Wood had it on his person." Even if entering the car to turn it off was

proper under the community caretaking function, this does not support the

trooper's choice to look in the center console. Statema did not testify that he went

into the car to turn it off. And, even if that was his purpose, the officer did not need

the key fob to turn off the car,3 nor did he ask Wood if he had the key fob on him

before he entered the car. The record is insufficient to affirm the trial court's denial

of the suppression on this basis. The State bears the burden of establishing that

this was a valid inventory search of an impounded vehicle, and it cannot meet its

burden on this record. See Tyler, 177 Wn.2d at 698.

       For the impoundment of Wood's car to be lawful under the community

caretaking function, the troopers were required to at least consider whether

Wood's spouse or friends were available to move the car from the scene. Palm

testified that he would not have considered bringing someone to the scene to

retrieve the car because the area was too dangerous. Even if the trooper thought

it was too dangerous for a friend or family member to come retrieve the vehicle,

allowing Wood to arrange private towing would have been an alternative to

impound, as the court noted in Froehlich. See 197 Wn. App. at 840. A private tow

would have obviated the need for an inventory search.                    Under these

circumstances, the trial court's findings of facts are not sufficient to support its

conclusion of law that the State satisfied the second community caretaking


       3 The State conceded at oral argument that the car could have been turned
off without the key fob.

                                              11
No. 76221-4-1/12


requirement. And, even though the impoundment of Wood's car was authorized

under RCW 46.55.113, it was not lawful because the troopers did not consider

reasonable alternatives.4

       Because the impoundment was unlawful, the inventory search of his car

was improper.        An inventory search may occur after a vehicle is lawfully

impounded. Tyler, 177 Wn.2d at 701. Trooper Palm obtained a warrant to search

Wood's car based exclusively on what was observed during the unlawful search.

When an unconstitutional search or seizure occurs, all subsequently uncovered

evidence becomes fruit of the poisonous tree and must be suppressed. State v.

Ladson, 138 Wn.2d 343, 359, 979 P.2d 833 (1999). Therefore, the evidence

obtained from Wood's car was fruit of the poisonous tree, and must be suppressed.

Where the State's case rests exclusively on improperly seized evidence, the

proper remedy is to vacate the conviction and dismiss the charge with prejudice.

State v. Hopkins, 128 Wn. App. 855, 866, 117 P.3d 377(2005). Wood's conviction

rested exclusively on the controlled substances obtained from the search of his car

after the seizure.

       Because the car was unlawfully impounded, the seizure of evidence from

Wood's car was unlawful. Thus, the trial court erred in denying Wood's motion to

suppress. We reverse.



       4We distinguish this scenario from one in which a car is summarily towed
from a tow away zone because no one is present with the vehicle. While Wood's
car was parked in a 24 hour tow zone, he was present at the scene and, under
Tyler, the officers should have considered reasonable alternatives before
impoundment, including permitting Wood to arrange a private tow.

                                           12
No. 76221-4-1/13


 II.   VUCSA Fine

       To make a clear record we also address Wood's second argument, where

he argues that the trial court exceeded its authority by imposing a $3,000 fine

pursuant to the Violation of the Uniform Controlled Substances Act (VUCSA),

chapter 69.50 RCW.        RCW 69.50.430(2) authorizes a $2,000 fine for an

individual's second or subsequent VUCSA conviction. Wood has a prior VUCSA

conviction. Wood asserts that the trial court was not authorized to impose a $3,000

fine instead of the $2,000 authorized by RCW 69.50.430(2).

       The State responds that, because Wood failed to object to the fine below,

and the court did not exceed its statutory authority, the challenge to the fine is

waived. It argues that the court had authority to impose a $3,000 fine, interpreting

it as a $2,000 fine under VUCSA and $1,000 as a general fine.

       This court has held that a trial court's error in imposing costs not authorized

by statute is a challenge that may be raised for the first time on appeal. State v.

Diaz-Farias, 191 Wn. App. 512, 520, 362 P.3d 322(2015).

       Here, the trial court ordered Wood to pay a $3,000 VUCSA fine, not a

$2,000 VUCSA fine and a $1,000 fine under RCW 9A.20.021(1)(b), which states

that a maximum penalty for a class B felony may include a fine up to $20,000. The

trial court exceeded its authority by imposing a $3,000 VUCSA fine instead of the

statutory $2,000 fine. If we were not reversing the conviction, we would remand

to the trial court to correct the VUCSA fine.




                                             13
No. 76221-4-1/14


 111.   Community Custody Conditions

        Finally, Wood argues that two unlawful community custody conditions

should be stricken from his sentence. He argues first that the condition ordering

him to remain outside "known drug areas as defined by DOC [(Department of

Corrections)] officer" is unconstitutionally vague. The State concedes that "drug

areas" is unconstitutionally vague and this condition should be clarified or stricken.

We accept the State's concession.

        Wood argues second that the condition prohibiting him from visiting

establishments where alcohol is the primary commodity for sale is not crime

related. A "crime related prohibition" is an order of a court prohibiting conduct that

directly relates to the circumstances of the crime for which the offender has been

convicted. RCW 9.94A.030(10). The State argues that, even though this condition

is listed under crime related prohibitions in the judgment and sentence, "it is not

that kind of condition," claiming instead that it is a condition limiting Wood's entry

into a specific geographical boundary. But, at sentencing the trial court stated, "I

think that it may well be that alcohol is the sort of substance that sometimes

weakens a person's judgment and resolve.... I think I'm going to impose this

condition." This refutes the State's argument that the trial court intended this to be

a condition limiting Wood's entry into specific geographical boundaries.           At

sentencing the State acknowledged that there were no allegations that alcohol was

involved in Wood's convicted offense. Therefore, the condition prohibiting Wood

from entering establishments where alcohol is the primary commodity for sale is

not crime related.


                                             14
No. 76221-4-1/15


       If we were not reversing the conviction, we would remand to the trial court

to strike both of the contested conditions.

       We reverse.




WE CONCUR:




                                              15
