* State of Washington v. Heath T. Wisdom

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FILED
SEPT. 3,2015
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
COURT OF APPEALS, DIVISION III, STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
HEATH TYLER WISDOM,
Appellant.
) 	No. 	31832-0-111
)
)
)
) 	ORDER GRANTING IN PART
) 	AND DENYING IN PART
) 	MOTION FOR
) 	RECONSIDERATION
) 	AND AMENDING OPINION
THE COURT has considered respondent's motion for reconsideration of our May
19,2015 opinion.
IT IS ORDERED, the motion for reconsideration is granted in part and denied in
part and the opinion shall be amended as follows: The paragraph beginning on page 20
and continuing on page 21 is removed. 	This paragraph reads:
Whether an inventory prevents or even lessens false charges of
theft can be questioned. Assuming Washington has a dishonest officer,
the officer can take an accused's valuable object or money and not
include it on his inventory list. A dishonest arrestee could claim she
maintained a valuable jewel in her purse and the officer, when listing
inventory, failed to list the jewel. 	Houser, 95 Wn.2d at 155 n.3. An
inventory reduces false charges only when both parties are present and
participate in the inventory. Officers rarely wish for the arrestee to
participate in any inventory. 	Nate Boyer did not conduct his inventory in
the presence of Heath Wisdom or any other person.
 	 	 	 	 	 	 	 	 	 	 	 	 	

The following paragraph is inserted in place of the removed
paragraph:
An inventory might reduce, but cannot ensure against false charges
of theft. A dishonest arrestee could claim she maintained a valuable jewel
in her purse, and the officer, when listing inventory, failed to list the jewel.
Houser, 95 Wn.2d at 155 n.3. We recognize that participation by a
second individual in the inventory search may not be a prerequisite to a
lawful search. 	Nevertheless, an inventory offers strong protection against
a false charge of theft only when both parties are present and participate
in the inventory. 	Officers rarely wish for the arrestee to participate in any
inventory. The record contains no showing that a second individual
assisted Nate Boyer in conducting or listing the inventory.
DATED: 	September 3,2015
PANEL: Judges Fearing, Siddoway, Korsmo
FOR THE COURT:
 	 	 	 	 	 	 	 	 	 	 	 	 	

FILED
MAY 19,2015
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, 	)
) 	No. 31832-0-111
Respondent, 	)
)
v. 	)
)
HEATH TYLER WISDOM, 	) 	PUBLISHED OPINION
)
Appellant. 	)
FEARING, J. - 	We address the legality of a law enforcement officer's search of a
zipped shaving kit bag found on the seat of a truck. The officer had arrested the truck's
driver because the truck was stolen. The driver informed the officer of methamphetamine
being on the seat, but did not consent to a search of his bag. Despite the triviality of the
circumstances, this appeal concerns a critical issue surrounding Washington's
constitutional prohibition against law enforcement disturbing private affairs ''without
authority of law." Despite the banality of the facts, this appeal raises a fundamental
question concerning whether Washington State will be a police state, in which law
enforcement officers employ their own discretion when determining to search property,
or a state under the rule of law with magistrates prejudging the validity of police
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 31832·0-111
State v. Wisdom
searches. Defendant Heath Wisdom, the driver of the stolen truck, moved the trial court
to suppress as evidence the cornucopia of pharmacopeia found in the shaving kit as fruit
of an unlawful warrantless search. 	The trial court denied the motion and found Wisdom
guilty of one count each of possession of cocaine, ecstasy, and heroin, and one count of
possession with intent to deliver methamphetamine. We reverse.
FACTS
Heath Wisdom drove, near Moxee, a Chevrolet pickup truck with an ATV in its
back. 	Someone earlier reported both vehicles as stolen. Yakima County Sheriff Deputy
Nate Boyer, while on patrol, passed the pickup, and Boyer's automated license plate
reader identified the pickup as stolen. Deputy Boyer pulled Wisdom over and arrested
him for possession of a stolen vehicle. Boyer handcuffed Wisdom, searched his body,
and escorted him to the patrol vehicle. Boyer found on Wisdom's body a pipe that
Wisdom admitted he used for smoking methamphetamine.
Deputy Nate Boyer advised Heath Wisdom of his Miranda rights, which the latter
waived. Boyer asked if there were drugs in the truck, and Wisdom replied that
methamphetamine lay on the front seat. Boyer looked inside the cab of the truck and saw
filters, some cleaner, and a black "shaving kit type" bag. Clerk's Papers (CP) at 24.
Boyer concluded that the bag contained the methamphetamine. The toiletry bag was
closed, but Boyer espied money through the mesh side of the bag. 	We do not know if an
additional lining partitioned the money inside the mesh from the remaining contents of
the bag.
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No. 31832-0-111
State v. Wisdom
After photographing the truck, Deputy Boyer removed the bag from the vehicle,
opened it, and found methamphetamine, cocaine, ecstasy, heroin, drug paraphernalia, and
two thousand seven hundred dollars in cash. Heath Wisdom told Deputy Boyer that he
owned the black bag. Deputy Boyer had not asked Wisdom ifhe owned the black bag
before searching inside the bag.
Deputy Boyer never obtained a warrant for his search, nor did he request Heath
Wisdom's consent before opening the black bag. Law enforcement impounded the truck
and ATV, since the legal owner could not be located.
PROCEDURE
The State of Washington charged Heath Wisdom with three counts of possession
ofa controlled substance in violation ofRCW 69.50.4013(1) (cocaine, ecstasy, and
heroin) and one count of possession of a controlled substance with intent to deliver under
RCW 69.50.401(1) (methamphetamine). 	Wisdom moved under CrR 3.6 to suppress all
evidence found in the black toiletry bag. 	Wisdom argued: (1) Deputy Boyer's
warrantless search of the truck and the bag did not fall within the exceptions allowing a
search incident to arrest, (2) Boyer's "inventory search" of the black bag was actually an
investigatory search for evidence of a crime, and (3) Wisdom's concession that there was
methamphetamine in the truck was not consent to search the vehicle or the bag. The
State responded that: (1) the impound and search of the vehicle was lawful, and (2) the
search of the black bag was a lawful inventory search. The State conceded that
Wisdom's statement to Boyer did not amount to an implied consent to search.
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J
I At the suppression hearing, Deputy Nate Boyer testified that he opened and
j 	searched the black bag pursuant to department policy, and in order to protect against
potential liability claims for loss of property:
1 	[PROSECUTOR]: Ok. What else did you do?
BOYER: 	I took custody of a black bag. Which was seated on the
passenger side of the vehicle.
[PROSECUTOR]: 	Why?
BOYER: It obviously contained a large amount of money. Which
was clearly visible from the outside of the vehicle looking in. And Mr.
Wisdom had previously stated that there was a large amount of
methamphetamine in the vehicle.
[PROSECUTOR]: 	Is this type ... let me back up. 	What did you?
What was your purpose for seizing that black bag?
BOYER: It appeared to be an item of high value. 	Which any time
there is something of high value it's never left in an impounded vehicle.
It's placed into property and then claimed by the rightful owner ... it also
appeared to be a narcotic sales type bag. 	Which contained a large amount
of drugs.
[PROSECUTOR]: Is this any different from a regular inventory
search?
BOYER: No, it is not.
[PROSECUTOR]: Could you see anything else from the outside of
the black bag?
BOYER: I could see that there was a large amount of money in the
side of the bag. 	It appeared to be bindles [sic] of money stacked
individually. And then also checks could also be seen. Based on the
amount of money I could see, it was apparent that there was a large sum of
money there.
Report of Proceedings (RP) at 8-9.
On cross-examination, Deputy Boyer admitted that he suspected the black bag
contained drugs, but he did not obtain a warrant prior to opening and searching the bag:
[DEFENSE COUNSEL]: Ok. Now you called this an inventory
search. Is that correct?
BOYER: Correct.
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No. 3 I 832-0-III
State v. Wisdom
[DEFENSE COUNSEL]: 	Ok. Let me ask you this. You didn't
have a warrant?
BOYER: No, I did not.
[DEFENSE COUNSEL]: You did not call for a telephonic warrant.
Is that correct?
BOYER: That's correct.
[DEFENSE COUNSEL]: You know how to call for a telephonic
warrant?
BOYER: Yes I do.
[DEFENSE COUNSEL]: Ok. 	Was there anything preventing you
from calling for a telephonic warrant?
BOYER: No, there was not.
[DEFENSE COUNSEL]: Ok. And my client did not give you
consent to search that vehicle. Is that correct?
BOYER: I did not ask his consent. No.
BOYER: When asked if there was any meth in the vehicle, Wisdom
told me there was quite a bit of meth in the truck.
[DEFENSE COUNSEL]: And then the next sentence please.
BOYER: Wisdom told me it was sitting on the seat of the truck.
[DEFENSE COUNSEL]: And that bag had ... the only thing you
could see visible on that bag was the money and the checks that you
previously described?
BO YER: 	Correct.
[DEFENSE COUNSEL]: Ok. And then you went in to the truck
and you removed ... at some point you went into the truck and you
removed that bag?
BO YER: Correct.
[DEFENSE COUNSEL]: Ok. And you opened that bag and you
discovered, per your report; approximately an ounce of methamphetamine,
marijuana, baggies, and other drugs?
BOYER: Correct.
[DEFENSE COUNSEL]: Ok. As part of your inventory search.
Correct?
BOYER: Correct.
[DEFENSE COUNSEL]: Ok. So you knew there were drugs in the
car? Per my client's statement.
BOYER: He stated that there were drugs in the car. Yes.
[DEFENSE COUNSEL]: Ok. And you knew that they were most
likely contained, if they were in that truck, within that black bag. Correct?
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BOYER: It would appear. Based on my observation, the black
[bag] can handle a large amount of money and it was found to contain a
large amount of drugs as well.
RP at 11-14.
On redirect examination, Deputy Nate Boyer stated that he did not seek a search
warrant because he instead performed an inventory search of the vehicle and collected
property during the inventory. But on recross-examination, Boyer encountered difficulty
answering yes or no to whether he believed he would find drugs in the black bag when he
started his search:
[DEFENSE COUNSEL]: Ok. Miss prosecutor asked you ... her
quote was, "somewhere in the vehicle there were drugs". He actually told
you they were on the front seat. Is that correct? Per your report.
BOYER: He did say they were sitting on the seat of the truck.
[DEFENSE COUNSEL]: All right. . .. Miss prosecutor also asked
if you were looking for contraband. And your response was, "documenting
the contents of that truck. " You had a strong reason to believe there was
contraband in that vehicle? Is that correct? Based on my client's known
statements to you?
BOYER: Based on the statements, I believed there [were] probably
drugs in the vehicle.
[DEFENSE COUNSEL]: Ok. So you were also looking for those
drugs. Is that correct?
BOYER: Part of the ... when you inventory the vehicle ...
[DEFENSE COUNSEL]: Yes or no.
BOYER: You're documenting what's there. 	So yes, I would be
looking for ...
[DEFENSE COUNSEL]: I want to object.
BOYER: Whatever was there.
JUDGE: 	Ok. Go ahead and ask the question again.
[DEFENSE COUNSEL]: Thank you. You were also looking, yes
or no, you were also looking for suspected methamphetamine in that truck.
Is that correct?
BOYER: I guess in the final sentence. Yes, I was looking for
whatever would be there. Yes.
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No. 31832-0-111
State v. Wisdom
[DEFENSE COUNSEL]: Ok. Believing there to be
methamphetamine in that truck.
[PROSECUTOR]: Objection Your Honor. He's badgering the
witness.
JUDGE: Well I think that he's trying to get a yes or no answer.
And so far we haven't yet gotten the yes or no. You may ask your question
agam.
[DEFENSE COUNSEL]: Ok. Believing that there was
methamphetamine in that truck. Correct?
BOYER: Mr. Wisdom's statement was that there was
methamphetamine in the vehicle.
[DEFENSE COUNSEL]: Ok. 	So that would be a yes. You were
also looking for methamphetamine?
BOYER: 	I was looking for what was in the vehicle. 	I was
documenting the contents of the truck. If that included methamphetamine,
then yes, I was looking for that.
[DEFENSE COUNSEL]: Ok. Let me ask you this ...
BOYER: I was not specifically searching for methamphetamine. If
that's what you're trying to ask ...
[DEFENSE COUNSEL]: Well let me ask you this; the discovery of
that methamphetamine just wasn't a fortuitous event that you happened to
come across. Correct?
BOYER: It was not a shock. No.
[DEFENSE COUNSEL]: Ok. You believed there to be
methamphetamine in that vehicle. Correct? Based on my client's
statement to you. Yes?
[PROSECUTOR]: Objection, Your Honor. Asked and answered
multiple times.
JUDGE: I think it's clear that he knew that there was drugs in there.
The defendant stated that it would be on the seat of the truck. And he
described what items were on the seat of the truck. So I think that even I
can connect the dots there.
RP at 19-21.
The trial court denied Heath Wisdom's motion to suppress. In so ruling, the court
did not address whether the search of the black bag was a legitimate inventory search.
Instead, the trial court held that Wisdom no longer had a reasonable expectation of
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No. 31832-0-III
State v. Wisdom
privacy when he informed Deputy Boyer of methamphetamine on the.truck's seat. The
court wrote:
When a person tells law enforcement that drugs are in a specific
area, it is unreasonable for that person to have any expectation of privacy in
that limited area. Here, the intrusion was minimal, and the defendant no
longer had a reasonable expectation of privacy in the bag.
CP at 39.
LA W AND ANALYSIS
Issue I: 	Whether Heath Wisdom holds standing to challenge the search of the
shaving kit bag?
Answer 1: This court should not address standing since the State does not argue
that Wisdom lacked standing.
The dissent devotes pages to assessing the standing of Heath Wisdom to challenge
the search of the black bag. The State has not argued that Wisdom lacked standing to
assert a constitutional challenge to the search. Wisdom lacks notice that this court might
consider his standing and thus has no opportunity to address the issue. "[T]here are
obvious due process problems in affirming a trial court ruling in a criminal proceeding on
an alternative theory against which the defendant has had no opportunity to present an
argument." State v. Adamski, 111 Wn.2d 574, 580, 761 P.2d 621 (1988).
Any examination of Heath Wisdom's standing violates principles of appellate
jurisprudence. This court does not review issues not argued, briefed, or supported with
citation to authority. RAP 10.3; Valente v. Bailey, 74 Wn.2d 857, 858,447 P.2d 589
8
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 31832-0-III
State v. Wisdom
(1968); Avellaneda v. State, 167 Wn. App. 474, 485 n.5, 273 PJd 477 (2012). This court
should not raise new issues without first giving the parties the chance to brief them. RAP
12.1.
The dissent claims that the trial court denied Heath Wisdom's motion to suppress
on the basis of lack of standing. The trial court held that Wisdom lacked an expectation
of privacy but did not expressly root the decision on lack of standing. The State did not
argue standing below. The State, as it does on appeal, relied on the inventory and the
search incident to arrest exceptions to the warrant requirement.
The dissent is also wrong that Heath Wisdom lacks standing. The dissent cites
propositions from a number of decisions, but fails to synthesize the propositions when
adjudging Wisdom to lack standing. Under Washington's liberal constitution, a
defendant has automatic standing even if he might technically lack a privacy interest in
property. State v. Evans, 159 Wn.2d 402, 407, 150 P.3d 105 (2007). A defendant has
automatic standing if: (1) possession is an essential element of the offense, and (2) the
defendant possessed the contraband at the time of the contested search of seizure. State
v. Evans, 159 Wn.2d at 407; State v. Jones, 146 Wn.2d 328, 333, 45 PJd 1062 (2002);
State v. Goucher, 124 Wn.2d 778, 788,881 P.2d 210 (1994). 	The doctrine of automatic
standing ensures that the State will not assume contradictory positions by arguing at a
suppression hearing that the defendant did not have possession of the property and
therefore lacked Fourth Amendment privacy interests and then arguing at trial that the
defendant is guilty of unlawful possession of the property. State v. Simpson, 95 Wn.2d
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No. 31832·0-III
State v. Wisdom
170,175,622 P.2d 1199 (1980) (plurality). The doctrine also allows a defendant to claim
in a suppression hearing possession in order to establish standing without the concession
being used against him at trial on the issue of possession. State v. Simpson, 95 Wn.2d at
175. Contrary to the assertion of the dissent, each purpose behind the rule need not be
present for automatic standing to occur. The defendant's concession, at the scene of the
seizure, of ownership of the controlled substance does not negate standing.
The State charged Heath Wisdom with possessory crimes. Although he lacked
possession of the bag at the precise time of the search, he had possession when Deputy
Boyer arrested him. In State v. Jones, 146 Wn.2d 328 (2002), the defendant sat in the
officer's patrol car when the officer searched a purse lying in the defendant's stopped car.
The court granted Kurt Jones standing to challenge the search since, despite his repose in
the patrol car, he remained in constructive possession of the contents found in his car.
The dissent falsely asserts that Heath Wisdom denied owning anything inside the
truck other than the methamphetamine and claims that Wisdom did not assert O\ynership
of the black bag until after the inventory search. The false assertion may be critical to the
dissent's wrong conclusion. The dissent fails to recognize that Deputy Nate Boyer never
earlier asked Wisdom ifhe owned the bag. Thus, Wisdom never denied ownership of the
bag. He never disclaimed ownership of anything. Boyer searched the bag because he
believed he would find Wisdom's methamphetamine therein. Boyer considered the bag·
as one used for narcotics sales. Boyer reasonably believed Wisdom to own the bag.
The dissent relies on State v. Zakel, 119 Wn.2d 563,571,834 P.2d 1046 (1992),
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No. 31832-0-III
State v. Wisdom
for the proposition that standing is determined at the time of search. Although the Zakel
court noted that Darcy Zakel did not possess the vehicle at the time of the search, the
court did not expressly hold that standing is determined at the time of search. Anyway,
the law supports the conclusion that Heath Wisdom possessed the shaving kit bag at the
time of the search.
Issue 2: 	Whether the search incident to arrest exception excused Deputy Nate
Boyer from obtaining a search warrant before unzipping and perusing the inside of the
shaving kit bag?
Answer 2: No.
Sheriff Deputy Nate Boyer garnered no search warrant before unzipping the black
shaving kit bag. He could have and should have obtained a warrant. Boyer could have
inventoried the bag as one unit, retained the bag, and searched inside it after obtaining a
warrant. Because only a judicial officer upon probable cause issues a warrant, warrants
are a critical feature of American law enforcement.
Deputy Boyer's failure to obtain a search warrant leads us to peruse familiar
jurisprudence about warrantless searches. The lack of a warrant also prompts reflection
on the importance of judicial warrants and the nature of law enforcement, our criminal
justice system, and order in our society.
Searches conducted outside the judicial process, without prior approval of a judge
or magistrate, are per se unreasonable under article I, section 7 of the Washington State
Constitution, subject only to a few specifically established and well delineated
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No. 31832-0-III
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exceptions. State v. Duncan, 146 Wn.2d 166, 171,43 P.3d 513 (2002). 	Washington's
Constitution provides: "[n]o person shall be disturbed in his private affairs, or his home
invaded, without authority oflaw." WASH. CONST. art. I, § 7. Although the Washington
Constitution, unlike the Fourth Amendment to the federal constitution, does not mention
warrants, state law also presumes that a law enforcement officer will obtain a judicial
warrant before a search. A valid warrant constitutes "authority of law" under article I,
section 7. State v. Valdez, 167 Wn.2d 761, 771-72, 224 P.3d 751 (2009).
The unique language of article I, section 7, generally provides greater protection to
persons under the Washington Constitution than the Fourth Amendment provides. State
v. Snapp, 174 Wn.2d 177, 187,275 P.3d 289 (2012). The Washington Constitution
provides added safeguards, in part, because unlike the Fourth Amendment, article I,
section 7 clearly recognizes an individual's right to privacy with no express limitations.
State v. Ferrier, 136 Wn.2d 103, 110,960 P.2d 927 (1998). This broader reading of
individual solitude extends to the area of search warrants. State v. Snapp, 174 Wn.2d at
187. Therefore, we rest our decision on state law.
On appeal, the State neither argues that Heath Wisdom consented to the search nor
his acknowledgement of the presence of methamphetamine vitiated an expectation of
privacy inside the toiletry bag. The trial court relied on the narrow ground that Heath
Wisdom no longer held a reasonable expectation of privacy because of his inculpatory
remark of methamphetamine lying on the pickup seat. We agree with the State's implied
concession that the trial court's basis for the ruling was error. Article I, section 7, unlike
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No. 31832-0-III
State v. Wisdom
the Fourth Amendment, is not grounded in notions of reasonableness. State v. Snapp,
174 Wn.2d at 194. Rather, it prohibits any disturbance of an individual's private affairs
without authority oflaw. State v. Valdez, 167 Wn.2d 761,773,224 P.3d 751 (2009).
The decision to invade the privacy of an individual's personal effects, absent
extraordinary circumstances, should be made by a neutral magistrate rather than an agent
of the executive. Johnson v. United States, 333 U.S. 10, 13-14,68 S. Ct. 367, 92 L. Ed.
436 (1948). Even though the issuance of a warrant by a judicial officer is inevitable, the
evaluation by a neutral magistrate is needed. 	United States v. Chadwick, 433 U.S. 1, 15
16,97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977), abrogated by California v. Acevedo, 500
U.S. 565, 111 S. Ct. 1982, 114 L. Ed. 2d 619 (1991). Individual freedoms will best be
preserved through a separation of powers and divisions of functions among the different
branches and levels of government. 	United States v. United States District Court, 407
U.S. 297, 317, 92 S. Ct. 2125, 32 L. Ed. 2d 752 (1972).
Searches conducted without warrants have been held unlawful notwithstanding
facts unquestionably showing probable cause. Agnello v. United States, 269 U.S. 20, 33,
46 S. Ct. 4, 70 L. Ed. 145 (1925). The mere fact that law enforcement may be made
more efficient also can never by itself justify disregard of the Fourth Amendment,
Washington's article I, section 7, analog. Mincey v. Arizona, 437 U.S. 385, 393, 98 S. Ct.
2408,57 L. Ed. 2d 290 (1978); Coolidge v. New Hampshire, 403 U.S. 443,481,91 S. Ct.
2022,29 L. Ed. 2d 564 (1971). The investigation of crime would always be simplified if
warrants were unnecessary. Mincey v. Arizona, 437 U.S. at 393. But the Fourth
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No. 31832-0-111
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Amendment reflects the view of those who wrote the Bill of Rights that the privacy of a
person's home and property may not be totally sacrificed in the name of maximum
simplicity in enforcement of the criminal law. 	United States v. Chadwick, 433 U.S. at 6
11 (1977). 	The judicial warrant has a significant role to play in that it provides the
detached scrutiny of a neutral magistrate, which is a more reliable safeguard against
improper searches than the hurried judgment of a law enforcement officer. 	United States
v. Chadwick, 433 U.S. at 9. Once a lawful search has begun, it is also far more likely that
it will not exceed proper bounds when it is done pursuant to a judicial authorization
particularly describing the place to be searched and the persons or things to be seized.
United States v. Chadwick, 433 U.S. at 9. Although these principles arise from federal
cases construing the United States Constitution's Fourth Amendment, Washington law
adds greater protections against searches and seizures, and Washington courts rely on the
principles.
Law enforcement is an honorable profession that deserves the highest respect from
the citizenry and judicial system, and the overwhelming majority of law enforcement
officers are honest and diligent professionals. Law enforcement officers risk and
sometimes sacrifice their lives for our safety. Nevertheless, law enforcement officers are
engaged in the "often competitive enterprise of ferreting out crime." Johnson v. United
States, 333 U.S. at 14. Police officers hold the power to destroy lives and reputations,
and even the best of officers may sometimes cut comers in violation of constitutional
rights. The nature of law enforcement work can lead to a jaundiced and cynical view of
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No. 31832-0-111
State v. Wisdom
human nature and an unhealthy distrust of citizens. Recent events have challenged the
credibility of law enforcement officers and dinted the public trust of police officers.
Review of police conduct by a neutral magistrate can only improve that trust.
Boston Red Sox outfielder Ted Williams, the last player to bat over .400,
possessed exceptional eyesight. He could follow the trajectory and instantaneously
pinpoint the position of a fastball better than any umpire. He also was a fair and honest
ball player. Nevertheless, American League rules did not allow Williams to call his own
balls and strikes. The appearance of fairness demanded employment of a neutral umpire.
Fairness demands that, except in emergency circumstances, a review by a neutral
magistrate precede a search by a law enforcement officer of private possessions.
Courts treat "luggage and other closed packages, bags, and containers" as unique
for purposes of police searches. 	United States v. Acevedo, 500 U.S. 565, 571, 111 S. Ct.
1982,114 L. Ed. 2d 619 (1991). 	Washington courts recognize an individual's privacy
interest in his closed luggage, whether locked or unlocked. See State v. Houser, 95
Wn.2d 143, 157,622 P.2d 1218 (1980). Exposure of the container to the public does not
permit police to search inside the container. 	United States v. Chadwick, 433 U.S. at 13
n.8 (1977).
A person does not rummage through a woman's purse, because of secrets obtained
therein. A man's shaving kit bag can be likened to a woman'~ purse. The kit bag could
obtain prescription drugs, condoms or other items the owner wishes shielded from the
public. The bag is intended to safeguard the privacy of personal effects. Literature,
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No. 3 I 832-0-III
State v. Wisdom
medicines, and other things found inside a bag may reveal much about a person's
activities, associations and beliefs. California Bankers Ass 'n v. Schultz, 416 U.S. 21, 78
79,94 S. Ct. 1494,391. Ed. 2d 812 (1974) (Powell, 1., concurring).
In State v. Houser, 95 Wn.2d 143,622 P.2d 1218 (1980), our high court found a
privacy interest in a toiletry kit, which presumably equates to a shaving kit. Other
jurisdictions have found a privacy interest in a shaving kit under various circumstances.
Fixel v. Wainwright, 492 F.2d 480,482 (5th Cir. 1974); State v. Sargent, 2009 ME 984
A.2d 831, 834-35; Marganet v. State, 927 So. 2d 52,61-62 (Fla. Dist. Ct. App. 2006);
State v. Beresford, 156 vt. 333, 336, 592 A.2d 882 (1991); Moore v. State, 268 Ark. 171,
175-76, 594 S.W.2d 245 (1980). In Fixel v. Wainwright, the court suppressed evidence
of heroin found in a shaving kit bag found in the defendant's home backyard. The law
enforcement officers obtained a search warrant for the home, but the court considered the
bag to be outside the scope of the warrant and entitled to privacy protections.
In Moore v. State, the state of Arkansas argued that officers could search a shaying
kit found in the defendant's car after the officers stopped the car and arrested the
defendant. The Arkansas Supreme Court held that a warrant was necessary, and the court
suppressed evidence found in the kit. The court likened the shaving kit to luggage.
Washington allows a few jealously and carefully drawn exceptions to the warrant
requirement, which include exigent circumstances, searches incident to an arrest,
inventory searches, plain view searches, and Terry investigative stops. Terry v. Ohio,
392 U.S. 1,88 S. Ct. 1868,201. Ed. 2d 889 (1968); State v. Garvin, 166 Wn.2d 242,
16
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 31832-0-III
State v. Wisdom
249,207 PJd 1266 (2009). 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). Most decisions pay only lip service to these oft-quoted
principles. We take the principles seriously and consider them outcome determinative in
this appeal.
The State contends that Nate Boyer's opening of the zipped bag passes muster as a
legitimate search incident to arrest and as a proper inventory search. 	We independently
analyze whether the warrantless search was justified under the search incident to arrest
exception and the inventory search exemption. We rule that neither exception warranted
the search of the toiletry bag.
Under both a Fourth Amendment analysis and an independent state constitution
analysis, a warrantless vehicle search incident to arrest is authorized when the arrestee
would be able to obtain a weapon from the vehicle or reach evidence of the crime of
arrest to conceal or destroy it. Arizona v. Gant, 556 U.S. 332, 338, 129 S. Ct. 1710 L. Ed.
2d 485 (2009); State v. Louthan, 175 Wn.2d 751,754,287 PJd 8 (2012). In Gant, the
United States Supreme Court upheld the Arizona Supreme Court's determination that the
warrantless search of an arrestee's car did not fall under the "search incident to arrest"
exception to the warrant requirement, when the arrestee had already been secured in the
back of a police car and there was no immediate need to protect officers at the scene or to
preserve evidence. Gant, 556 U.S. at 393-94. The Court explained that such searches are
permissible only if the arrestee is within reaching distance of the passenger compartment
17
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 3 1832-0-III
State v. Wisdom
at the time of the search, or it is reasonable to believe the vehicle contains evidence of the
offense of arrest. Gant, 556 U.S. at 351. The search incident to arrest exception derives
from interests in officer safety and evidence preservation that are typically implicated in
arrest situations. Gant, 556 U.S. at 338.
Heath Wisdom sat handcuffed in the patrol car at the time of the seizure and
search of the toiletry bag. He lacked access to the bag. Thus, the State of Washington
relies on the second permissible ground in Gant behind a search incident to arrest:
preservation of evidence of the crime for which the suspect is arrested. The State
emphasizes that Deputy Boyer observed money through the closed bag and thought the
cash could be related to the theft of the vehicle. This argument might succeed under the
United States Constitution, but fails under our state constitution.
State v. Snapp, 174 Wn.2d 177,275 P.3d 289 (2012) controls. In Snapp, our
Supreme Court addressed the issue of whether an equivalent to Gant's second exception
applies under article I, section 7 of the Washington Constitution. The court answered
"no." The protections guaranteed by article I, section 7 are qualitatively different from
those under the Fourth Amendment. Snapp, 174 Wn.2d at 187. Based on our state
constitution, our high court disapproves expansive application of the search-incident-to
arrest exception to the period of time after the arrestee is secured and attendant risks to
officers have passed. Snapp, 174 Wn.2d at 189. When a search can be delayed without
running afoul of concerns for officer safety or to preserve evidence of the crime of arrest
from concealment or destruction by the arrestee, and does not fall within another
18
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 31832-0-III
State v. Wisdom
applicable exception, the warrant must be obtained. Snapp, 174 Wn.2d at 195. The
police officer can prevent destruction of evidence by holding the bag as a sealed unit until
obtaining a warrant.
Issue 3: Whether Deputy Nate Boyer's inventorying of the pickup's contents
excused the need to obtain a search warrant?
Answer 3: No.
To justify an inventory search, the State of Washington argues that the search was
reasonable because Boyer observed cash through a mesh side of the closed bag and only
opened the bag to count the money for the purpose of protecting against future liability
claims. Heath Wisdom does not dispute that Deputy Boyer could impound the truck or
that the officer could seize the bag as one sealed unit. He complains about the unzipping
of the bag.
Inventory searches, unlike other searches, are not conducted to discover evidence
of crime. State v. Houser, 95 Wn.2d 143, 153,622 P.2d 1218 (1980). Accordingly, a
routine inventory search does not require a warrant. 	United States v. Chadwick. 433 U.S.
at 10 n.5 (1977); State v. Houser, 95 Wn.2d at 153.
The Washington Supreme Court has held that a noninvestigatory inventory search
of an automobile is proper when conducted in good faith for the purposes of: (1) finding.
listing, and securing from loss during detention property belonging to a detained person;
or (2) protecting police and temporary storage bailees from liability due to dishonest
claims of theft. State v. Houser, 95 Wn.2d at 154; State v. Gluck, 83 Wn.2d 424. 428,
19
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 31832-0-III
State v. Wisdom
518 P.2d 703 (1974); State v. Montague, 73 Wn.2d 381,385-87,438 P.2d 571 (1968). 	In
sanctioning such a search, however, our high court recognizes the possibility for abuse
and has required that the State show that the search was conducted in good faith and not
as a pretext for an investigatory search. Montague, 73 Wn.2d at 385. As a further
protection against abuse, the scope of the search should be limited to those areas
necessary to fulfill its purpose. State v. Houser, 95 Wn.2d at 155. Accordingly, the
inventory should be limited to protecting against substantial risks to property in the
vehicle and not enlarged on the basis of remote risks. State v. Houser, 95 Wn.2d at 155.
While Washington courts recognize inventory searches may serve legitimate government
interests, these interests are not limitless and do not outweigh the privacy interests of
Washington citizens. State v. White, 135 Wn.2d 761, 771, 958 P.2d 982 (1998).
In State v. Dugas, 109 Wn. App. 592, 597, 36 P.3d 577 (2001), this court wrote:
The inventory search is a recognized exception because, unlike a
probable cause search and a search incident to arrest, the purpose of an
inventory search is not to discover evidence of a crime, but to perform an
administrative or caretaking function. 	Knowledge of the precise nature of
the property protects against claims of theft, vandalism, or negligence.
Whether an inventory prevents or even lessens false charges of theft can be
questioned. Assuming Washington has a dishonest officer, the officer can take an
accused's valuable object or money and not include it on his inventory list. A dishonest
arrestee could claim she maintained a valuable jewel in her purse and the officer, when
listing inventory, failed to list the jewel. Houser, 95 Wn.2d at 155 n.3. 	An inventory
reduces false charges only when both parties are present and participate in the inventory.
20
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 31832-0-III
State v. Wisdom
Officers rarely wish for the arrestee to participate in any inventory. Nate Boyer did not
conduct his inventory in the presence of Heath Wisdom or any other person.
In at least three decisions, Washington courts suppressed evidence found in a
closed container on the ground that the officer could have merely listed the container on
the inventory rather than opening the container and listing each individual item inside.
State v. White, 135 Wn.2d 761 (1998); State v. Houser, 95 Wn.2d 143 (1980); State v.
Dugas, 109 Wn. App. 592 (2001). The decision most on point is State v. Houser. 	Our
Supreme Court suppressed evidence of drugs obtained through a warrantless search of a
toiletry bag located in the locked trunk of an arrestee's impounded vehicle. The Court
held "where a closed piece of luggage in a vehicle gives no indication of dangerous
contents, an officer cannot search the contents of the luggage in the course of an
inventory search unless the owner consents." Houser, 95 Wn.2d at 158. A citizen places
personal items in luggage in order to transport the items in privacy and with dignity.
The dissent distinguishes State v. Houser on the ground that officers seized
Houser's toiletry kit from a locked trunk and Heath Wisdom's kit lay on the front seat of
the pickup cab. Although the Houser court ruled, in part, on the basis that Houser's trunk
was locked, the court also declared the search unlawful because of the nature of the
shaving kit. The kit was not locked. That exact reasoning applies here.
Four years later, in State v. White, 135 Wn.2d 761 (1998), the Supreme Court
suppressed evidence obtained through a warrantless inventory search of a locked trunk,
which police opened by pressing a release lever located in the car's glove compartment.
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No. 31832-0-111
State v. Wisdom
The Court expressly reaffinned Houser, noting'" Houser is a simple, comprehensive and
workable decision ... it lacks neither in logic nor common sense'" 	White, 135 Wn.2d at
772 (quoting State v. White, 83 Wn. App. 770, 785, 924 P.2d 55 (1996) (Becker, 1.,
dissenting) ).
State v. Dugas, 109 Wn. App. 592 (2001) completes our trilogy. 	In Dugas, this
court held unreasonable a warrantless search of a closed key ring pouch found in the
jacket an arrestee had shed and lay on the hood of a car prior to being arrested. 	While
impounding the jacket after the arrestee had been escorted from the scene, officers
discovered and opened the pouch without consent or a warrant and discovered cocaine
inside. 	In holding the search of the pouch unreasonable, the court noted that Parris Dugas
was no longer present, he did not consent, and there was no indication of dangerous
contents.
The State relies on State v. Smith, 76 Wn. App. 9, 882 P.2d 190 (1994). A crucial
distinction between Smith, on the one hand, and Houser, White, and Dugas, on the other
hand, is the procedural context in which the respective inventory searches took place.
The police searched Ethel Mae Smith's purse as part of its routine booking procedure,
while she was present, and where she could have asked someone to take her purse prior
to her booking. The view inside Heath Wisdom's toiletry bag was not during a station
house booking inventory. 	Assuming Smith to be relevant to our facts, the Supreme Court
decisions in State v. White and State v. Houser assume priority.
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No. 31832-0-111
State v. Wisdom
The State emphasizes that the Yakima County sheriff policies authorized, if not
demanded, that Deputy Nate Boyer conduct an inventory of the contents of the bag at the
scene of the arrest. 	Some decisions consider the fulfillment of department policy as
relevant to the legitimacy of the search. State v. Dugas, 109 Wn. App. at 597 (2001). An
internal police department policy should not, however, justifY an unconstitutional search.
The permitted extent of an inventory search pursuant to police department policy must be
restricted to effectuating the purposes that justifY the exception warrant clause. State v.
Dugas, 109 Wn. App. at 597-98. An improper search cannot be legitimized by
conducting it pursuant to standard police procedures. State v. Houser, 95 Wn.2d at 154
(1980).
Incident to his argument that Heath Wisdom lacked standing to challenge the
search of the bag, the dissent also argues that a thief lacks a privacy interest in stolen
property that society should recognize as reasonable. 	We agree, but the search at issue
was the search of Heath Wisdom's shaving bag. The bag was not stolen. The status of
the Chevrolet pickup being a stolen vehicle does not reduce Heath Wisdom's privacy
rights in the shaving kit bag. In State v. Simpson, 95 Wn.2d 170,622 P.2d 1199 (1980),
our state high court suppressed Jerry Simpson's possessions found inside a stolen
Chevrolet pickup truck. The court denied the State's contention that one lacks privacy
rights because the search occurred inside a stolen vehicle.
The dissent wrongly asserts that Heath Wisdom only claimed ownership to the
methamphetamine, contraband in which he could have no privacy interest that our society
23
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 31832-0-III
State v. Wisdom
would recognize as reasonable. This assertion ignores that Wisdom claimed ownership
of the shaving bag and the methamphetamine lay inside the bag. 	The dissent may
propose a rule that no defendant can ever hold a privacy interest in an unlawful
substance, no matter if the substance rests concealed in a container, because of the evil
and illegal nature of the substance. 	Such a rule would moot all search and seizure law
with regard to illegal drugs and always justify the seizure of controlled substances.
The State contends that a ruling in its disfavor means this court would mandate
that Deputy Boyer have left a bag of cash and perhaps drugs sitting on the seat of a stolen
truck, with no key, with a stolen ATV in the back, at night, in a public parking lot. Our
ruling does not command these silly consequences. Nate Boyer could have listed the
toiletry bag as a whole in his inventory and then sought a search warrant to open the bag.
He could have sought a telephonic warrant before leaving the scene of the arrest. Once
Boyer seized the bag, the bag would not return to the control of Heath Wisdom such that
Wisdom could destroy the methamphetamine. Boyer could retain the bag until he
obtained a search warrant. Thus, no exigent circumstances arose.
In Arkansas v. Sanders, 442 U.S. 753, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979),
abrogated by California v. Acevedo, 500 U.S. 565, 111 S. Ct. 1982, 114 L. Ed. 2d 619
(1991) the United States Supreme Court suppressed evidence of the contents of an
automobile trunk. The Court noted the validity of the seizure of the trunk, but ruled that
the officers should have sought a warrant before opening the trunk and inventorying its
contents.
24
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 31832-0-III
State v. Wisdom
The dissent predicts and laments that, if Deputy Boyer sought a search warrant, a
judge would deny the warrant. The dissent mentions that Boyer only saw money inside
the bag's mesh and possessing money is not a crime. This prediction is baseless since
Heath Wisdom earlier told Nate Boyer that methamphetamine lay on the front seat of the
pickup truck and the only container on the seat that could hold the methamphetamine was
the shaving kit bag. We doubt a magistrate would deny a search warrant with such
evidence. An assumption of a denial of the application, however, defeats, not supports
the dissent's argument. 	This assumption necessitates an underlying supposition that
Deputy Boyer lacked probable cause to search inside the bag. If Deputy Boyer lacked
probable cause, he should not have searched inside and the evidence of the contents
inside shou,ld not be used against him in a prosecution.
CONCLUSION
The warrantless search inside of Heath Wisdom's black bag was not justified by
either a search incident to arrest or an inventory search. We reverse the trial court's
denial of Heath Wisdom's motion to suppress evidence, reverse his four convictions, and
dismiss all charges filed against him.
I CONCUR:
Siddoway, C.J.
25
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 	31832-0-III
KORSMO, J. (dissenting) - 	It boggles the mind that an officer cannot look inside
an unlocked bag visibly full of money while inventorying the contents of a stolen truck.
Nonetheless, the majority reaches that result in the absence of relevant authority by
expanding dictum in an opinion that itself relied on subsequently rejected case law. For
these, and other, reasons, I dissent. 	A thief does not have a privacy interest in stolen
property that society should recognize as reasonable and, thus, Mr. Wisdom had no
standing to contest the inventory search. But, even ifthere was standing, the officer
could look through an unlocked bag left on the front seat of the stolen truck. Because the
officer properly looked inside the bag while conducting a lawful inventory search that
Mr. Wisdom lacked standing to challenge, the convictions should be affirmed.
Initially, I note my agreement with the majority that the trial court erred in stating
that Mr. Wisdom lacked an "expectation of privacy" in the gym bag full of money and
drugs. Expectation of privacy is a Fourth Amendment concern. State v. Myrick, 102
Wn.2d 506, 510, 688 P.2d 151 (1984). Under article I, § 7, the consideration is whether a
defendant's "private affairs" have been invaded. Myrick, 102 Wn.2d at 510. That term
"focuses on those privacy interests which citizens of this state have held, and should be
entitled to hold, safe from governmental trespass absent a warrant." Jd. at 511. Mr.
Wisdom argues this case on the basis of our state constitution rather than the federal
constitution. The question for us then is whether he had any privacy interest in the
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 31832-0-II1
State v. Wisdom (dissent)
contents of the stolen truck that he "should be entitled to hold, safe from governmental
trespass absent a warrant." Id.
Washington initially granted automatic standing under article I, § 7 in criminal
cases when a defendant was charged with a possessory offense and was in possession of
the item at the time of the search. E.g., State v. Simpson, 95 Wn.2d 170, 181, 622 P .2d
1199 (1980) (plurality). Subsequently, our court has recognized that typically it is the
defendant's "private affairs" that govern whether standing exists. State v. Carter, 127
Wn.2d 836, 848-49, 904 P.2d 290 (1995). Nonetheless, the concept of automatic
standing "still maintains a presence in Washington." State v. Williams, 142 Wn.2d 17,
22, 11 P.3d 714 (2000).1 Under either approach, Mr. Wisdom lacks standing to challenge
the inventory search of the bag.
It is an open question whether or not a defendant has any privacy interest in a
stolen vehicle or its contents. See State v. Zakel, 119 Wn.2d 563,571,834 P.2d 1046
(1992).2 I would answer that question "no" because one reason for an inventory search is
1 Because Simpson was only a plurality opinion, subsequent cases left open the
question of whether automatic standing applied under our state constitution. E.g., Carter,
127 Wn.2d at 836, State v. Goucher, 124 Wn.2d 778, 787-88,881 P.2d 210 (1994); State
v. Zakel, 119 Wn.2d 563,571,834 P.2d 1046 (1992). After Williams, our court twice
applied automatic standing, implicitly adopting it under our constitution. State v. Evans,
159 Wn.2d 402, 406-07, 150 P.3d 105 (2007); State v. Jones, 146 Wn.2d 328, 331-35, 45
P .3d 1062 (2002). Jones expressly limited the doctrine to the situation where a defendant
would be forced to either incriminate himselfby claiming ownership at a suppression
hearing or forego bringing a suppression challenge. Id. at 334.
2 The Zakel court also declined to decide if automatic standing applied since the
defendant was not in possession of vehicle at time of police search.
2
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 	31832-0-II1
State v. Wisdom (dissent)
to protect a vehicle owner's property. State v. White, 135 Wn.2d 761, 769-70, 958 P.2d
982 (1998). I would hold that a thief has no privacy interest that overrides that of the true
owner. An inventory search to protect and recover the true owner's property should not
be constrained by a thiePs assertions concerning which of the contents are his and which
are not.
On this record, I would additionally note that Mr. Wisdom never claimed
ownership of anything other than the methamphetamine3 on the front seat, contraband in
which he could have no privacy interest that our society would recognize as reasonable.
Thus, although the trial court used the wrong verbiage, the judge reached the correct
result. Mr. Wisdom lacked standing to challenge the inventory search.4
3 The majority mistakenly asserted that Mr. Wisdom claimed ownership of the
bag as well as the methamphetamine. He did not. After the inventory turned up the
methamphetamine, Mr. Wisdom admitted that the bag was his. Report of Proceedings
(RP) at 17. However, prior to the search, all he claimed was the methamphetamine.
RP at 5 ("he stated that there was more methamphetamine in the pickup"), RP at 12-14,
19-21. He did not claim ownership of anything else in the truck. RP at 17. Standing is
judged at the time of the search, not after the fact. 	E.g., Zakel, 119 Wn.2d at 571.
4 Strangely, the majority faults this dissent for discussing the standing issue at all,
even though standing was the basis on which the trial judge rejected the suppression
argument. See Williams, 142 Wn.2d at 23 ("Additionally, the defendant's challenge to
this police search would fail, even if we found that Williams had a sufficient expectation
of privacy in Jelinek's apartment to confer standing.") Without a reasonable expectation
of privacy, Mr. Wisdom had no basis for challenging the inventory. Id. The majority's
error probably occurred because appellant mistakenly argued standing as a subset of his
consent argument and the prosecutor, who was not relying on consent, understandably
did not address the consent argument. But, even if standing had not been decided by the
trial court, it is still a topic this court must entertain on appeal. RAP 2.5(a). See Int'l
Ass 'n of Firefighters, Local 1789 v. Spokane Airports, 146 Wn.2d 207,212 n.3, 45 PJd
186 (2002).
3
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 31832-0-111
State v. Wisdom (dissent)
The same result should follow even under the automatic standing doctrine since it
does not appear that the doctrine "maintains a presence" under these facts. 	This case
does not present the self-incrimination problem to which our automatic standing doctrine
applies. See State v. Jones, 146 Wn.2d at 334.5 Mr. Wisdom had already claimed
ownership of the drugs prior to the inventory. He would not further incriminate himself
by moving to suppress or testifying in support of the motion. Thus, the stated purpose for
our automatic standing doctrine would not be advanced here.
For both reasons, Mr. Wisdom lacked standing to contest the scope of the inventory
search. On that basis alone, we should affirm.
Nonetheless, assuming Mr. Wisdom had standing, there was nothing wrong with
looking inside the unlocked bag full of money-money that could be seen from outside the
truck. Inventory searches of stolen vehicles are permitted. State v. Tyler, 177 Wn.2d 690,
698,302 P.3d 165 (2013); Simpson, 95 Wn.2d at 189; State v. Houser, 95 Wn.2d 143, 149,
622 P.2d 1218 (1980); RCW 46.55.113(2)(e). 	The properly conducted inventory search
"is made for the justifiable purpose of finding, listing, and securing from loss" property.
State v. Montague, 73 Wn.2d 381,385,438 P.2d 571 (1968) (emphasis added); accord,
5 While it is somewhat incongruous to use Fifth Amendment standards to adjudge
whether standing exists for Fourth Amendment or article I, § 7 challenges, that
incongruity exists because of the desire to effectuate the different interests guaranteed by
all of those constitutional provisions. Whether there is need to use automatic standing in
light ofthe procedural protections ofCrR 3.5 and CrR 3.6 is debatable.
4
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 31832-0-111
State v. Wisdom (dissent)
White, 135 Wn.2d at 770.6 The scope of the inventory search includes the glove
compartment and unlocked containers in the vehicle. 	White, 135 Wn.2d at 766-67.7 The
rule of Houser is that locked containers cannot be searched.8 Tyler, 177 Wn.2d at 708.
Thus, anything left in a locked trunk is inside a locked container and cannot be disturbed.
Tyler, 177 Wn.2d at 708; White, 135 Wn.2d at 766-68.
The majority, however, mistakenly equates closed containers with locked containers.
The mesh bag in question was zippered shut; it was closed, not locked. The cases cited by
the majority do not aid its analysis on this point. In each instance, a closed container within
another container was not permitted to be searched. In Houser, the court stated that the
police could not open and inventory a closed toilet kit found inside. a bag inside the locked
trunk. 95 Wn.2d at 147, 156. In State v. Dugas, 109 Wn. App. 592, 36 PJd 577 (2001), the
police were not permitted to check the contents of a closed "key ring pouch" found in the
6 "State law required that [the officer] list the inventory of the vehicle before
turning it over to the private towing company." Tyler, 177 Wn.2d at 705.
7 White cites the Houser court's discussion of South Dakota v. Opperman, 428 U.S.
364, 96 S. Ct. 3092,49 L. Ed. 2d 1000 (1976), for this proposition. 	135 Wn.2d at 766.
Given that Houser did not involve a search of the glove compartment, this conclusion may
be a stretch. If unlocked glove compartments are subject to inventory searches, then that
standard is a far better fit for the unlocked bag in this case than the locked trunk situation is.
8 In the course of its analysis, the Houser court relied in part on the decisions in
Arkansas v. Sanders, 442 U.S. 753, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979) (unlocked
luggage) and United States v. Chadwick, 433 U.S. 1,97 S. Ct. 2476, 53 L. Ed. 2d 538
(1977) (locked footlocker). See Houser, 95 Wn.2d at 156-58. Those cases subsequently
were overruled in favor of permitting searches of containers found inside vehicles.
California v. Acevedo, 500 U.S. 565, 111 S. Ct. 1982, 114 L. Ed. 2d 619 (1991).
Inexplicably, the majority still relies on Sanders despite, and without acknowledging, its
demise.
5
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 	31832-0-III
State v. Wisdom (dissent)
pocket ofa coat. 	In White, the court declined to consider the validity of the search of an
unlocked tackle box found in a locked trunk. 	135 Wn.2d at 765, 772. 	In both instances
where it addressed the issue, the court could simply have said that the police lacked
authority to go inside the container in question (a bag in Houser and the coat in Dugas) if
the rule were as the majority suggests. Neither case did so. Instead, those courts focused on
the lack of need to open a container found within another container.9 Houser and Dugas do
not support the argument that the contents of an unlocked bag sitting on the seat of a truck
cannot be inventoried.
But, even if the container rule applies to the mesh bag in this case, an exception
should be made for valuable property that is visible to any viewer of the container. The
need of the police department to secure the victim's property and to protect itself from
claims (by either the victim or the defendant) concerning missing money should take
precedence over any privacy interest that may exist in money openly displayed to the
public. IO It defeats the very purpose of an inventory search-to list and secure property,
as well as protecting law enforcement from false claims-to make the police ignore a
valuable item in plain sight and act without knowledge of what was in their possession. I I
9 In the context of inventorying a wallet during jail booking, this court has rejected
the container rule. State v. Garcia, 35 Wn. App. 174,665 P.2d 1381 (1983).
10 For similar reasons, the Tyler court rejected an argument that consent should be
obtained prior to conducting a vehicle inventory. 	177 Wn.2d at 707-11.
II As the officer testified here: "any time there is something of high value it's
never left in an impounded vehicle. 	It's placed into property and then claimed by the
rightful owner." RP at 9.
6
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 	31832-0-II1
State v. Wisdom (dissent)
What is needed to secure $50 might be different than what is needed to secure $50,000.
The police need to know what they are guarding and, in cases like this, to whom the
property belongs. It simply is not possible to perform these tasks without identifying
what has come into their possession.
While the majority suggests that a search warrant should have been sought, that is
no answer in the typical case. If Mr. Wisdom had declined to speak, the officer simply
would have been facing a bag of money without any reason to believe there might be
contraband in the truck. It is not illegal to possess money. How could the officer have
obtained a search warrant under those facts?12 Nor, for that matter, could the officer have
relied on Mr. Wisdom's consent to search the truck since he was not lawfully in
possession of the vehicle. There simply was no means of performing the officer's duty
under the impound laws without inventorying the contents of the bag. For that reason, I
also would hold that police have the right during an inventory to check the entire contents
of a bag when valuable property is visible.
12 The majority does not attempt to answer this question, presumably because a
search warrant cannot issue without probable cause to believe a crime has been
committed, nor does it attempt to answer the problem of a thiers ability to contest an
inventory in the absence of automatic standing. At its heart, an inventory search is a
statutorily and judicially regulated aspect oflaw enforcement's community caretaking
function. As such, judicial regulation should consider all interests-those of the vehicle
owner as well as any interest asserted by the thief in possession of the vehicle-when
limiting the scope of the inventory search. Since Mr. Wisdom at the time of the
inventory disclaimed ownership of anything in the stolen truck except something no one
can own, this is not the case to impose new limitations.
7
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 31832-0-111
State v. Wisdom (dissent)
Thus, I would hold: (1) a defendant's "private affairs" do not include items located
in a stolen vehicle, (2) the automatic standing doctrine does not apply here since Mr.
Wisdom had already incriminated himself, (3) a proper inventory search extends to the
contents of unlocked containers found inside a vehicle (but not in the trunk), and (4) when
money or other valuable property is visible in an unlocked container, the police have a
right to inventory the contents of the container in order to fulfill their obligations under
our impound and inventory laws. I would affirm and, accordingly, therefore dissent from
the majority's disposition of this case.
8
 	 	 	 	 	 	 	 	 	 	 	 	 	

The Court of Appeals	Renee S. Townsley 	500 N Cedar ST
Clerk!Administrator 	of the 	Spokane, WA 99201-1905
(509) 456-3082 	Fax (509) 456-4288
TDD #1-800-833-6388 	http://www.courts.wa.govlcourts
State of Washington
Division III
May 19, 2015
Kristina M. Nichols 	E-mail
Nichols Law Firm, PLLC 	David Brian Trefry
PO Box 19203 	Yakima County Prosecutors Office
Spokane, WA 	99219-9203 	PO Box 4846
Wa.Appeals@gmail.com 	Spokane, WA 	99220-0846
CASE # 318320
State of Washington v. Heath T. Wisdom
YAKIMA COUNTY SUPERIOR COURT No. 101016452
Counsel:
Enclosed please find a copy of the opinion filed by the Court today.
A party need not file a motion for reconsideration as a prerequisite to discretionary review by the
Supreme Court. 	RAP 13.3(b); 13.4(a). 	If a motion for reconsideration is filed, it should state with
particularity the points of law or fact which the moving party contends the court has overlooked or
misapprehended, together with a brief argument on the points raised. 	RAP 12.4{c). 	Motions for
reconsideration which merely reargue the case should not be filed.
Motions for reconsideration, if any, must be filed within twenty (20) days after the filing of the
opinion. 	Please file an original and two copies of the motion. 	If no motion for reconsideration is filed,
any petition for review to the Supreme Gourt must be filed in this court within thirty (30) days after the
filing of this opinion (may be filed by electronic facsimile transmission). 	The motion for reconsideration
and petition for review must be received (not mailed) on or before the dates they are due. 	RAP 18.5(c).
Sincerely,
~Y0~
Renee S. Townsley
Clerk/Ad min istrator
RST:sh
Enclosure
c: 	E-mail Honorable David Elofson
c: 	Heath T Wisdom
Reg. no. 13870-085 FCI Herlong
Federal Correctional Institution
P.O. Box 800
Herlong, CA 	96113
 	 	 	 	 	 	 	 	 	 	 	 	 	

Log Number: 	P-039
Oral Argument Date:
Court of Appeals Division III
State of Washington
Opinion Information Sheet
Docket Number: 31832-0
Title of Case: 	State of Washington v. Heath T. Wisdom
File Date: 	05/19/2015
SOURCE OF APPEAL
Appeal from Yakima Superior Court
Docket No: 	10-1-01645-2
Judgment or order under review
Date filed: 	07112/2013
Judge signing: Honorable David A Elofson
JUDGES
Authored by George B. Fearing
Concurring: Laurel H. Siddoway
Dissenting: 	Kevin M. Korsmo
COUNSEL OF RECORD
Counsel for AppeUant(s)
Kristina M. Nichols
Nichols Law Firm, PLLC
POBox 19203
Spokane, W A, 99219-9203
Counsel for Respondent(s)
J ames Patrick Hagarty
Attorney at Law
34142 Parkview Ave
Eustis, FL, 32736-7224
David Brian Trefry
 	 	 	 	 	 	 	 	 	 	 	 	 	

Yakima County Prosecutors Office
P O Box 4846
Spokane, WA, 99220-0846

OPINION FACT SHEET
Case Name: 	State v. Wisdom
Case Number: 	31832-0-111
1. TRIAL COURT INFORMATION:
i A. 	SUPERIOR COURT: Yakima
I Judgment/Order being reviewed:
i Judgment and sentence
i Judge Signing: David Elofson
I Date Filed: 	July 12, 2013
2. 	COURT OF APPEALS INFORMATION:
( ) 	Affirmed
( ) 	Affirmed as
Modified
( ) 	Affirmed in
PartiRemanded**
( ) 	Affirmed/Rev'd-in
part & Remanded
( ) 	AffirmedNacated in
part
( ) 	Affirmed In
PartlRev'd in Part
( ) 	Denied (PRP,
Motions, Petitions)
( ) 	Dismissed (PRP)
( ) 	Granted/Denied in
Part
( ) 	Granted (PRP,
Motions, Petitions)
( )
( )
( )
Other
Reversed and
Dismissed
Remanded **
~ Reversed
( ) 	Reversed In Part
( )
( )
( )
( )
Remanded with
Instructions**
Reversed and
Remanded **
Rev'd, Vacated and
Remanded **
Vacated and
Remanded **
* 	These categories are established by the Supreme Court
** 	If remanded, is jurisdiction being retained by the Courts
of Appeals? 	( ) 	YES
() 	NO
3. 	SUPERIOR COURT INFORMATION:
(IF THIS IS A CRIMINAL CASE, CHECK ONE)
~~ further action required by the superior court?
Y' 	YES 	() 	NO ~f
--~----------------
Authoring Judge's Initials