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                                                 This opinion was filed for record
tuneccoun.son OF WUHMSTQN                      at 8'a^ A/^-)     opWYach /fT 0^;/^
1^ DATE     mar 1 ^ ?.018
      CHieFJusnca
                                                      SUSAN L. CARLSON
                                                   SUPREME COURT CLERK




       IN THE SUPREME COURT OF THE STATE OF WASHINGTON




  STATE OF WASHINGTON,                            NO. 94054-1


                      Respondent,                 EN BANC


                V.

                                                  Filed     MAR 1 5 2018
  JUSTIN DEAN VANHOLLEBEKE,

                      Petitioner.




          GORDON MeCLOUD, J.—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 ofthe 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.
State V. Vanhollebeke (Justin Dean), No. 94054-1


      Vanhollebeke was charged with unlawful possession ofa 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.


      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.

      We therefore affirm the Court of Appeals.

                                        Facts


      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
State V. Vanhollebeke (Justin Dean), No. 94054-1


license. CP at 35(FF 1.4); RP (Jan. 20, 2015) at 18.^ Garza began writing a citation

for driving while license suspended. RP (Jan. 20, 2015) at 22.

       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. M at 28.


       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;^ 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


      'Dispatch also advised that Vanhollebeke had warrants out for his arrest, but Garza
could not confirm these warrants and never intended to arrest Vanhollebeke on them. RP
(Jan. 20, 2015) at 18-21.

       ^ CP at 21 ("I spoke to Deputy Bames and he told me he would be willing to drive
to Hatton and make contact with Casteel to see if we could get permission to search his
truck.").
State V. Vanhollebeke (Justin Dean), No. 94054-1


        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 ofthe 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.^ Casteel was sick and declined Barnes's invitation to

accompany him back to the scene. Id. at 110.

       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



       ^ Barnes's statements to Casteel regarding impoundment may have been incorrect.
Before the other officers discovered the pipe, Garza had intended to cite Vanhollebeke only
for driving with license suspended and then release him. RP (Jan. 20, 2015) at 21-22. No
officer testified that there was any discussion of an arrest before Barnes left to contact
Casteel. Bames testified that he was not aware of Garza's intent when he spoke with
Casteel.Id. at 132. Still, there was no dispute in the trial court, nor is there now any dispute,
that officers could have arrested Vanhollebeke on the suspended license charge.
State V. Vanhollebeke (Justin Dean), No. 94054-1


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.

       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."^

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.




        See CP at 35 (FF 1.6, 1.7)("Unable to reach him by phone. Deputy Bames drove
to Mr. Casteel's home.""There he advised Mr. Casteel ofthe situation involving his truck,
explained that he did not have to consent to a search of the truck, gave him the option to
accompany the deputy back to the truck, and eventually was given a key by Mr. Casteel.").
State V. Vanhollebeke (Justin Dean), No. 94054-1


                                 Procedural History


       Vanhollebeke appealed on several grounds, and the Court of Appeals affirmed

the conviction.^ State v. Vanhollebeke, 197 Wn. App. 66,68,387 P.3d 1103(2016),

review granted, 188 Wn.2d 1001, 393 P.3d 360 (2017). The only issue before this

court is the constitutionality of the search.

       The Court of Appeals began by acknowledging that this case presented a

question left open by State v. Cantrell, 124 Wn.2d 183, 875 P.2d 1208 (1994):

whether the driver ofa borrowed car can, by expressly objecting to a search, override

the consent of another person with "common authority" over the vehicle.^

Vanhollebeke, 197 Wn. App. at 72-73. 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 (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




       ^ The Court of Appeals remanded for a new sentencing hearing because it agreed
with Vanhollebeke that the State failed to prove his offender score by a preponderance of
the evidence. Vanhollebeke, 197 Wn. App. at 68.

       ® Cantrell held that where the passenger in a borrowed car consents to a search of
that car and the driver does not object, contraband found in the search is admissible against
the nonobjecting driver. 124 Wn.2d at 188-191. The Cantrell court explicitly declined to
decide whether the result would be different if the vehicle's nonconsenting occupant
objected instead of remaining silent. Id. at 192.
State V. Vanhollebeke (Justin Dean), No. 94054-1


exclude all others from the truck except for Mr. Casteel[, and][f]or this reason, Mr.

Vanhollebeke did not have a reasonable expectation ofprivacy ifMr. Casteel wanted

to search his own truck or allow another person to do so." Vanhollebeke, 197 Wn.

App. at 74. 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 Wn. App. at 74-76; 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.

      Neither the Court of Appeals in this case nor the Cantrell court analyzed the

issue under Washington Constitution article I, section 7. Cantrell, 124 Wn.2d at 190

n.l9; Vanhollebeke, 197 Wn. App. at 75 n.4. Both courts held that the briefing was

inadequate to present the question of an independent state constitutional analysis.

Cantrell, 124 Wn.2d at 190 n.l9; Vanhollebeke, 197 Wn. App. at 75 n.4.

Vanhollebeke provided an independent state constitutional argument under State v.

Gunwalf 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.


        106 Wn.2d 54, 720 P.2d 808 (1986). Under Gunwall, a court determines whether
a state constitutional provision is more protective than its federal counterpart by
considering six nonexclusive factors: (1) the text of the state constitutional provision at
State V. Vanhollebeke (Justin Dean), No. 94054-1


                                  Standard of Review


       We review elaims that constitutional rights were violated de novo. State v.

Iniguez, 167 Wn.2d 273, 280, 217 P.3d 768 (2009).

                                         Analysis


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

       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 Wn.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 ofthose exceptions is

for consent, and consent is the exception at issue here. State v. Mathe, 102 Wn.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.").




issue,(2)significant differences between the text of parallel state and federal constitutional
provisions, (3) state constitutional and common law history, (4) state law predating the
state constitution,(5)structural differences between the state and federal constitutions, and
(6) matters of particular state or local concern. Id. at 61-62.
                                              8
State V. Vanhollebeke (Justin Dean),'Ho. 94054-1


      The defendant challenged the warrantless search ofthe borrowed car over his

explicit objection. As the criminal defendant charged with a possessory offense
resulting from the search, Vanhollebeke has standing to raise this claim. State v.

Williams, 142 Wn.2d 17, 23, 11 P.3d 714(2000).

      II.    While the driver of an absent owner's vehicle does not ordinarily
             assume the risk that the absent owner will consent to a search,the driver
             does assume that risk where the facts reasonably suggest it is stolen

             A. Thefederal and state two-part testfor authority to consent to search
                 in "common authority" cases

       Vanhollebeke now challenges the search of his truck under both the Fourth

Amendment and article I, section 7. In this situation, we generally analyze the

Washington State Constitution first. This is true for several reasons, including the

fact that the Washington Constitution is more protective of individual privacy. State

V. MacDicken, 179 Wn.2d 936, 940, 319 P.3d 31 (2014)(citing State v. Walker, 157

Wn.2d 307, 313, 138 P.3d 113 (2006)).

       But we have previously held that third-party consent issues(like the one raised

here) should be analyzed under the Fourth Amendment first. Specifically, in

Mathe—a case addressing a landlord's consent to the search of his tenant's

bedroom—^this court expressly adopted the Fourth Amendment's two-part test for

"questions of [third-party] consent issues under Const, art. [I], § 7." 102 Wn.2d at

543. Neither party argues that we should discard the Mathe court's adoption of the
State V. Vanhollebeke (Justin Dean), No. 94054-1


Fourth Amendment's common authority test as a starting point.^ For these reasons,

we begin with the combined state and federal constitutional test for determining the

validity ofthird-party consent to search shared property.^

       The Fourth Amendment standard for valid third-party consent to a search,

which this court adopted in Mathe and reaffirmed in State v. Leach, 113 Wn.2d 735,

738-40, 782 P.2d 1035 (1989), is a two-part test:(1)Did the consenting party have

authority to permit the search in his own right? And if so, (2) did the defendant

assume the risk that the third party would permit a search?^^ Both this court and the


       ^ Suppl. Br. of Resp't re: Gimwall Analysis at 5-6 ("[T]his Court has specifically
adopted the federal 'common authority' standard enunciated in U.S. v. Matlock for the
purpose ofdetermining issues of consent under article I, section 7 ofthe State Constitution.
The defendant has provided no authority why this Court should now abandon that holding."
(citations omitted)).

       ^ Mathe predates Giinwall—and thus does not consider GiinwaWs analysis. The
Mathe court acknowledged that article I, section 7 may provide protections different from
those in the Fourth Amendment, but nevertheless expressly adopted the federal standard
because "this rule best balances the interest of the police in conducting searches and our
citizens' right to privacy in their homes." 102 Wn.2d at 543. We reaffmned that holding
in a post-Gtmwa// case. State v. Leach, 113 Wn.2d 735, 738-39, 782 P.2d 1035 (1989),
where we applied the two-part federal "common authority" test in an article I, section 7
challenge to the search of an office. As discussed above, no one challenges that basic
analytical framework.

       10 Leach, 113 Wn.2d at 739-40 (citing Mathe, 102 Wn.2d at 543-44); Mathe, 102
Wn.2d at 543-44 (adopting the "common authority mle" from United States v. Matlock,
415 U.S. 164, 171 n.7, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974)); Matlock, 415 U.S. at 171
n.7(under the "common authority" mle, third-party consent is valid where "any ofthe co-
inhabitants has the right to permit the inspection in his own right and ... the others have
assumed the risk that one of their number might permit the common area to be searched");
Frazier v. Cupp, 394 U.S. 731, 740, 89 S. Ct. 1420, 22 L. Ed. 2d 684(1969) Goint user of
duffel bag had actual authority to consent to its search and,in allowing joint user to use the
                                             10
State V. Vanhollebeke (Justin Dean), No. 94054-1


United States Supreme Court refer to this test as the "common authority rule."

Mathe, 102 Wn.2d at 543-44; United States v. Matlock, 415 U.S. 164, 171 n.7, 94 S.

Ct. 988, 39 L. Ed. 2d 242(1974)).

             B. The consentingparty, the owner, clearly had the authority to consent
                 to the search in his own right

      There is no dispute that the first part of the test is satisfied in this case as the

truck's owner, Casteel, could clearly consent to its search "in his own right."

             C. The driver ofa car owned by another does not ordinarily assume the
                 risk that the owner will consent to a search


       We then proceed to the second part of the Mathe!Matlock test: whether

Vanhollebeke, by borrowing Casteel's truck, assumed the risk that Casteel might

allow others to search it.


       As discussed above, the trial court held a hearing on the validity of Casteel's

consent. The trial court judge found that

       1.2   The defendant exited the vehicle and locked it. He did not have
             a key and was not able to re-enter the vehicle.
       1.3   The defendant did not have identification with him.
       1.4   ... [Officers] learned that he was driving on a suspended license
             and had warrants out of Grant County. . ..
       1.5   Officers ... detained him further once they observed a meth pipe
             and punched out ignition in the car he was driving.. . .
       1.6   Unable to reach [Casteel] by phone, Deputy Barnes drove to Mr.
              Casteel's home.



bag, defendant assumed the risk that he would consent to its search; therefore,joint user's
third-party consent validated search of duffel bag).

                                            11
State V. Vanhollebeke (Justin Dean), No. 94054-1




       1.9    Defendant's interest in the vehicle was permissive and pursuant
              to an oral agreement between himself and the registered owner.

CP at 34-35. Beyond a brief acknowledgement that Vanhollebeke had Casteel's

consent to use the vehicle, RP (Jan. 20, 2017) at 128, Vanhollebeke did not present

any evidence indicating that he had exclusive use of the vehicle or that Casteel had

loaned him the car for any set length of time, nor any number of other scenarios that

could demonstrate more clearly defined privacy expectations or property rights.^'

No one challenges these factual findings.

       The trial court judge then concluded as a matter of law, "I think there's a

reduced expectation of privacy in a borrowed vehicle. I think somebody who

borrows a vehicle on an oral agreement has a reduced expectation . ..." RP (Jan. 20,

2017) at 153; see also CP at 36(Conclusion ofLaw 2.2).

       The broad, general statement that all drivers ofvehicles owned by a third party

have a reduced expectation of privacy lacks support in controlling case law. For

example, Vanhollebeke argues that Randolph, 547 U.S. 103—which held that a

present, objecting co-tenant can override another tenant's consent to a search—bars


      "See Suppl. Br. of Pet'r at 12 ("[I]t is entirely unknown whether Vanhollebeke
provided consideration for borrowing the truck or whether his use was gratuitous, when
and under what circumstances Vanhollebeke was required to return the truck to Casteel, or
[if] anything else concerning the nature of the agreement between Vanhollebeke and
Casteel . . . would provide a factual basis for ascertaining their interests and expectations
relative to the truck.").


                                             12
State V. Vanhollebeke (Justin Dean), No. 94054-1


the search that occurred in this case. Pet. for Review at 4-7.Randolph held that under

the "common authority" rule, the validity of third-party consent depends on the

reasonable expectations of the parties involved. 547 U.S. at 111 ("The constant

element in assessing Fourth Amendment reasonableness in consent cases, then, is

the great significance given to widely shared social expectations, which are naturally

enough influenced by the law of property, but not controlled by its rules.").

Vanhollebeke is certainly correct that under Randolph, when two people with

common authority (like an owner and a lawful driver, perhaps of a leased or rented

vehicle) disagree about whether to consent to a search, the refusal ordinarily trumps

the consent, based on our "shared social expectation" of a lawful driver and a

possessor's right to privacy. See, e.g.. United States v. Walker, 237 F.3d 845, 849

(7th Cir. 2001); United States v. Baker, 221 F.3d 438,442-43(3d Cir. 2000).

      Property law supports that general expectation. A driver may be using a

vehicle based on a lease, a rental, a sharing arrangement, or some other agreement.

Such a property right might also form the basis for an enforceable privacy right. As

one concurring justice stated in Fernandez v. California,

       "[PJroperty rights 'are not the sole measure of Fourth Amendment
       violations.'"        v. Jardines,[569] U.S.[1],   ,133 S. Ct. 1409,

          See also Randolph, 547 U.S. at 120-21 ("[T]he [cotenant's] 'right' to admit the
police ... is not an enduring and enforceable ownership right as understood by the private
law ofproperty, but is instead the authority recognized by customary social usage as having
a substantial bearing on Fourth Amendment reasonableness in specific circumstances.").

                                            13
State V. Vanhollebeke (Justin Dean), No. 94054-1


      1414, 185 L.Ed.2d 495 (2013). But as we have recently made clear,
      "[t]he Katz reasonable-expectations test 'has been added to, not
      substituted for,'' the traditional property-based understanding of the
      Fourth Amendment." Id, at           , 133 S. Ct. at 1417 (quoting United
      States V. Jones, 565 U.S. [400, 409], 132 S. Ct. 945, . . . 181 L.Ed.2d
      911 (2012)).

134 S. Ct. 1126, 1137, 188 L. Ed. 2d 25(2014)(Scalia, J., concurring).

      In coming to a different conclusion, the Court of Appeals relied on decisions

from Georgia, Texas, and the Eighth Circuit that declined to extend the Randolph

rule(ofrespecting the refusal of one with common authority, rather than the consent

of another with common authority) to vehicles. The Court of Appeals came to that

conclusion "because of society's lessened expectation of privacy in vehicles as

compared to homes." Vanhollebeke, 197 Wn. App. at 75-76 (citing United States v.

Lumpkins, 687 F.3d 1011, 1014 (8th Cir. 2012); Sevilla-Carcamo v. State, 335 Ga.

App. 788, 795, 783 S.E.2d 150, cert, denied. No. S16C1041 (Ga. 2016); State v.

Copeland, 399 S.W.3d 159, 156 (Tex. Grim. App. 2013), aff'd, 501 S.W.3d 610

(Tex. Crim. App. 2016). The court also cited two prQ-Randolph cases approving of

such searches—Anderson v. United States, 399 F.2d 753(10th Cir. 1968)and Hardy

(see Vanhollebeke, 197 Wn. App. at 73-74)—and the State adds one more in its

briefing to this court: United States v. Jensen, 169 F.3d 1044(7th Cir. 1999). Suppl.

Br. of Resp't at 13-14,




                                          14
State V. Vanhollebeke (Justin Dean), No. 94054-1


       We need not opine on the correctness of those factually distinguishable

decisions. The key point is that we disagree with the Court of Appeals that these

decisions support a broad, general rule that drivers assume the risk of an owner's

consent to search. Sevilla-Carcamo,^^ Anderson, Jensen)^ and Hardy^^ all involve


           In Sevilla-Carcamo, police stopped a woman for failing to signal a tum,
determined that she had no driver's license, placed her under arrest, and asked for consent
to search the vehicle. 783 S.E.2d at 151-52. When she refused,the arresting officer allowed
her to contact someone to take possession of the vehicle instead of allowing it to be
impounded.Id. at 152. The woman contacted her pastor. Id. When he arrived, officers told
him that they suspected that the vehicle contained contraband and that he would be
responsible for anything they found inside. Id. The pastor then conferred with the driver,
who told him (privately) that there might be drugs inside. Id. He requested that officers
search the vehicle, and they did so./J. The Court of Appeals approved this search, holding
that when Sevilla-Carcamo entrusted her vehicle to her pastor she "creat[ed] a bailment"
and assumed the risk that he would let someone else look inside. Id. at 155. The court also
held that Randolph does not apply to vehicles. Id. at 155-56. It characterized Randolph as
a "narrow holding" limited to the context of a residence. Id. at 155.

         Anderson, 399 F.2d at 754, 756-57 (after permissive driver was arrested for bank
robbery, police later obtained owner's written consent to search car; search was valid
because owner was either in possession or entitled to possession when she gave consent).

         Jensen, 169 F.3d at 1045, 1048-49 (after defendant was arrested in Illinois,
officers contacted owner ofcar he was driving, who was in Califomia; owner asked officers
if they would impound the car to save him the cost of private towing and storage, and
officers told him they could but would have to inventory the car to protect themselves;
owner gave permission; meanwhile, arrested driver told another officer that he could not
consent to the car's search because it wasn't his car; court held that defendant could not
later complain that owner's consent was invalid; moreover, defendant assumed the risk that
owner would consent when defendant "expressly acknowledged to the officers that [the
owner] had the right and power to consent to a search").

         Hardy,440 S.E.2d at 436-47 (after police informed car's owner that car could be
impounded, owner consented to search over the objection of permissive driver, who had
already been arrested; owner's consent overrode driver's objection because owner had
absolute right to reclaim the vehicle at any time).


                                            15
State V. Vanhollebeke (Justin Dean), No. 94054-1


defendants who were already under arrest when officers obtained the third party's

consent to the search. They cannot form the basis for a general rule that the driver of

a vehicle owned by a third party ordinarily runs the risk that the third party will

reclaim it and consent to a search. In addition, in this case, Vanhollebeke was not

arrested, but rather lawfully detained and present to object to the search. RP (Jan.

20, 2015) at 30. Copeland involved a disagreement between a driver and passenger:

the driver consented to the search and the passenger objected. 399 S.W.3d at 160.'^

Lumpkins involved a defendant who supposedly lacked any possessory right to the

vehicle at all—it was overdue for return to the company from which the defendant

had rented it. 687 F.3d at 1012-14.'^




         The Court of Appeals approved the search because it concluded that society
generally recognizes the driver of a vehicle as having rights superior to a passenger's.
Copeland, 399 S.W.Sd at 164. That reasoning is not helpful here, where Vanhollebeke was
the driver and Casteel, the car's true owner, was absent.

         In Lumpkins, officers followed a car with "heavily tinted windows"to a residence
and,"out of concem for officer safety," handcuffed the driver when he emerged from the
vehicle at a private residence. 687 F.3d at 1012. The officers looked through the car's
windshield, also for purported safety reasons, and observed what looked like a bag of
marijuana. Id. The keys were locked inside the car, which the officers soon leamed had
been rented by Budget Rent-a-Car to a third party who was present at the residence and
objected to a search, /t/. at 1012-13. The officers called the rental company and were told
that the car was overdue for return. Id. at 1013. The rental company employee on the
phone asked the officers to wait with the car until she could arrive to retrieve it. Id. When
she arrived, she unlocked the vehicle remotely and consented to a search. Id. The officers
searched the vehicle and recovered drugs, a handgun, and ammunition capable of
penetrating bullet-proof vests. Id. The defendant, Lumpkins, argued that the search
violated Randolph. Lumpkins, 687 F.3d at 1014. The Court of Appeals rejected that
argument, noting that it is "not clear" whether Randolph applies to vehicles and holding
                                             16
State V. Vanhollebeke (Justin Dean), No. 94054-1


       We therefore disagree with the State's and Court of Appeals' broad, general

assertion that a driver of a vehicle owned by another person generally assumes the

risk that the third-party owner will consent to a police search. See Vanhollebeke, 197

Wn. App. at 74(stating "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 ofprivacy ifMr. Casteel wanted

to search his own truck or allow another person to do so"). Instead, leases, rental

contracts, sharing arrangements, and other current societal expectations or property

rights or agreements might bar such third-party consent searches. See, e.g., Walker,

237 F.3d at 849("A person listed as an approved driver on a rental agreement has

an objective expectation of privacy in the vehicle due to his possessory and property

interest in the vehicle."); Baker, 221 F.3d at 442-43 ("Although [defendant] did not

own the car, he had substantial control over it insofar as he had borrowed it from a

friend . . . had been driving it for four to six weeks . . . carried the keys to the car . .

.[and there was] no evidence ... that the car was stolen.... All ofthese factors lead

to the conclusion that [defendant] had a reasonable expectation of privacy in the

car.").




that, in any event, neither Lumpkins nor the renter had any right at all to a vehicle that they
were on notice the rental company was trying to repossess. Id. at 1014.

                                              17
State V. Vanhollebeke (Justin Dean), No. 94054-1




             D. The evidence in this case, however, gave the officers good reasons
                to believe the vehicle was stolen; this driver, without a key or
                identification and with a punched out ignition clearly visible,
                therefore assumed the risk that the police would contact the absent
                owner and seek consent to search


      We need not decide exactly when a driver's right to privacy in another's

vehicle starts to fade away. We are faced with the much narrower issue of whether

the driver of a vehicle he claimed he borrowed but that appears to be stolen—due to

the punched out ignition and the driver's lack of a key, along with the driver's claim

that he locked it in the vehicle when he exited contrary to the officer's command—

assumes the risk that the police will contact the owner and that owner will consent

to a police search. The answer to that question is clearly yes. This is consistent with

the reasoning in the United States Supreme Court's "common authority" cases that

"[IJegitimation of expectations of privacy by law must have a source outside of the

Fourth Amendment, either by reference to concepts of real or personal property law

or to understandings that are recognized and permitted by society." Rakas v. Illinois,

439 U.S. 128, 143 n.l2, 99 S. Ct. 421, 58 L. Ed. 2d 387(1978)("A burglar plying

his trade in a summer cabin during the off season may have a thoroughly justified

subjective expectation of privacy, but it is not one which the law recognizes as

'legitimate.'"). The search in this case did not violate the Fourth Amendment.




                                          18
State V. Vanhollebeke (Justin Dean), No. 94054-1


       Vanhollebeke argues that even ifthe Fourth Amendment does not prohibit the

search that occurred in this case, article I, section 7 does. Suppl. Br. of Pet'r at 17-

26. He is correct that article I, section 7 traditionally provides more robust protection

of privacy rights and does not depend on the Fourth Amendment's reasonableness

balancing.    But Vanhollebeke agrees that Mathe and the Fourth Amendment

provide the two-question framework for analyzing whether the owner's consent can

trump the driver's refusal. We therefore have no occasion to revisit the Mathe

framework for analysis here.

                                      Conclusion


       The driver of a vehicle generally has a right to refuse a police search of that

vehicle. But that driver may assume the risk that the police will contact an absent

owner and seek that owner's consent to search instead, in limited circumstances.

Vanhollebeke assumed the risk that absent owner Casteel might consent to a search

in this case. He did this by words, actions, and plain-view evidence, giving the police

officers good reason to believe the truck might be stolen. We therefore affirm the

Court of Appeals decision upholding denial ofthe motion to suppress.




          State V. Morse, 156 Wn.2d 1, 9-10, 123 P.3d 832(2005)(noting "[ujnlike in the
Fourth Amendment,the word 'reasonable' does not appear in any form in the text of article
I, section 7 of the Washington Constitution. . . . We have also repeatedly held that article
I, section 7 provides greater protection ofindividual privacy than the Fourth Amendment").
                                            19
State V. Vanhollebeke (Justin Dean), No. 94054-1




 WE CONCUR:




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