QUESTIONS PRESENTED

1. Is evidence seized from the locked trunk of a vehicle in violation of the Washington state constitution admissible in a federal prosecution?

2. Was a traffic stop and arrest for a traffic infraction reasonable under the fourth amendment?

3. Did the impound and inventory search of the trunk of a seized vehicle in violation of the Washington state constitution taint the evidence in federal court?

SHORT ANSWERS

1. Yes. To be admissible in federal court, evidence must be obtained in a manner consistent with the defendants fourth amendment rights.

2. Yes. The traffic stop and arrest was reasonable as determined by the fourth amendment.

3. Yes. Because state laws determine reasonableness of vehicle impoundment and inventory searches under the fourth amendment, the violation of the state constitution taints the evidence in federal court.

APPLICABLE AUTHORITY

1. Atwater v. City of Lago Vista, 121 S.Ct. 1536 (2001).

2. Whren v. United States, 517 U.S. 806 (1996).

3. Colorado v. Bertine, 479 U.S. 367 (1987).

4. South Dakota v. Opperman, 428 U.S.364 (1976).

5. United States v. Robinson, 414 U.S. 218 (1973).

6. Elkins v. United States, 364 U.S. 206 (1960).

7. United States v. Cormier, 220 F.3d 1103 (9^th Cir. 2000).

8. United States v. Wanless, 882 F.2d 1459 (9^th Cir. 1989).

9. United States v. Chavez-Vernaza, 844 F.2d 1368 (9^th Cir. 1987).

10. United States v. Duguay, 93 F.3d 346 (7^th Cir. 1996).

11. State v. White, 135 Wash. 2d 761, 958 P.2d 982 (1998).

12. State v. Houser, 95 Wash. 2d 143, 622 P.2d 1218 (1980).

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

FACTS

On September 15, 2000 Steven Kerr was arrested on in Port Angeles, Washington for a minor traffic violation. Port Angeles police officers became suspicious of his “nervous and fidgety” behavior during a traffic stop. Kerr’s vehicle was impounded and the contents of the vehicle were inventoried; including two “hefty” bags of marijuana found in the trunk. The county prosecutor found that the initial impound of Kerr’s vehicle violated the Washington state constitution and declined to file charges with regards to the marijuana found during the inventory search. During the course of investigation it was discovered that the marijuana was part of a mail order drug business so the evidence was turned over to a federal attorney who is filing charges against Kerr. Kerr’s attorney has filed a motion to suppress the evidence discovered during the impound and inventory search.

DISCUSSION

Introduction

This motion to suppress evidence deals with the admissibility of evidence obtained illegally as determined by the Washington state constitution. Under what is commonly known as “the fruit of the poisonous tree doctrine,” evidence that is illegally obtained must be suppressed. See generally 29 Am. Jur. 2d Evidence §633 (1994). However, the facts of the case against Kerr make it difficult to determine whether or not the evidence should be admissible in a federal prosecution.

To correctly address the question of admissibility we must determine whether state or federal law governs the search and seizure and then evaluate the events under the applicable authority. In doing this we will find that evidence to be used in a federal prosecution must be obtained in a manner that does not violate the rights afforded to the defendant under the fourth amendment to the United States constitution. Additionally, it is required that vehicle impoundment and vehicle inventory searches be conducted in accordance with state law in order for the federal constitutional rights of the defendant to be protected.

Evaluating the facts of this case under these standards the disputed evidence will likely be suppressed because Washington state law was violated in the decision to impound the vehicle. Assuming the impoundment was permissible, the evidence would still be inadmissible because the scope of the inventory search extended to the trunk of the vehicle, which was not allowable under the circumstances.

Federal Jurisdiction

Washington state officers violated state law in obtaining evidence against Mr. Kerr. Now that this evidence is to be used in a federal prosecution, there is a question about whether state or federal law is used to determine admissibility. Relevant authority indicates that in a federal prosecution, evidence obtained by state officers must be re-evaluated as if the search and seizure had been conducted under federal law and will be admissible in a federal trial if the defendant’s immunity from unreasonable searches and seizures under the fourth amendment to the U.S. constitution has not been violated. Elkins v. United States, 364 U.S. 206 (1960).

In Elkins, a search and seizure by state officers which violating state law also violated the defendant’s fourth amendment rights under the U.S. constitution. 364 U.S. at 206-224. The Court held that evidence obtained by state officers during a search which violated the defendant’s immunity from unreasonable searches and seizures under the fourth amendment, is inadmissible in federal court. Id. at 223. This rule was established in order to remove the incentive to ignore the constitutional guaranty of privacy. Id. at 217. See also, United States v. Cormier, 220 F.3d 1103 (9^th Cir. 2000); United States v. Chavez-Vernaza, 844 F.2d 1368 (9^th Cir. 1987).

An argument can be made that allowing federal prosecutors to the evidence would be inconsistent with the purpose of the federal bill of rights, which is to protect state citizen’s individual liberties. Ronald S. Range, Note, Reverse Silver Platter: Should Evidence That State Officials Obtained in Violation of a State Constitution be Admissible in a Federal Criminal Trial, 45 Wash. & Lee L. Rev. 1499 (1988). However, since the courts have been following the Elkins rule for over forty years it does not appear that this argument carries much weight.

Therefore, the admissibility of the evidence in this case depends on the legality of the seizure and subsequent search conducted by the police officers. The motion to suppress rests on whether or not the search and seizure complied with the protections of the fourth amendment.

The Traffic Stop and Arrest

Kerr was stopped for a minor traffic infraction and arrested; under federal law is this a reasonable seizure? It has been held that an officer who has observed a traffic infraction does not violate an individual’s fourth amendment rights when he stops the vehicle and arrests the driver; even if the arrest was a pretext for a narcotics search. Atwater v. City of Lago Vista, ___ U.S. ___, 121 S.Ct. 1536 (2001); Whren v. United States, 517 U.S. 806 (1996).

In Atwater, a driver was pulled over and arrested after an officer observed her driving without a seat belt. ___ U.S. at ___, 121 S.Ct at 1537. In holding that an individuals constitutional rights are not violated when seized for a fine-only misdemeanor, ___ U.S. at ___, 121 S.Ct at 1557, the court reasoned that states may impose more restrictive safeguards that turn on any sort of practical consideration, but the constitution of the United States operates on much broader principles. ___ U.S. at ___, 121 S.Ct at 1556.

Atwater was based predominately on Whren v. United States, which dealt with allegations that the officers had ulterior motives when they decided to stop the defendant’s vehicle. Whren, 517 U.S. at 806-819. In applying the fourth amendment, the court held that temporary detention of individuals during the stop of an automobile by the police constitutes a “seizure” and, “as a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” Id. at 809-810. The Court reasoned that probable cause to believe the law has been broken “outbalances” private interest in avoiding police contact. Id. at 818. See also United States v. Robinson, 414 U.S. 218 (1973).

The record indicates that the officers observed a traffic infraction committed by Kerr. Therefore, the officers where justified in stopping the defendant and arresting him. The defendant may argue that the arrest was unnecessary and was only a pretext for a narcotics search. However, an officer is not required to determine whether it necessary to arrest a driver during a traffic stop. Atwater, ___ U.S. at ___, 121 S.Ct at 1557. In addition, as stated in United States v. Robinson, “a traffic violation arrest will not be held invalid by the fact that it was a mere pretext for a narcotics search. 414 U.S. at 221. It can be concluded that even if the stop and arrest did not meet the privacy requirements of the constitution of Washington State, the defendant’s rights under the constitution of the United States have not been violated and the arrest should therefore be considered valid.

The Impound and Inventory Search

Having established that the stop and arrest did not violated Kerr’s constitutional rights, we find ourselves faced with the impound and inventory search. Specifically, whether the decision to impound the vehicle and inventory the contents, including those in the trunk, violated the defendant rights to be free from an unreasonable search under the fourth amendment.

To comply with the fourth amendment to the U.S. constitution, the decisions to impound a vehicle and inventory its contents must be conducted pursuant to standardized procedures of the local jurisdiction. South Dakota v. Opperman, 428 U.S.364, 376 (1976). Therefore, in Washington state a vehicle may only be impounded and searched if it is “evidence of a crime”, or “the officer has probable cause to believe it was stolen or used in the commission of a felony”; “as part of a community caretaking function”; or “if the driver has committed one of the traffic offense where the legislature has specifically authorized impoundment”. State v. Reynoso, 41 Wn. App. 113, 117, 702 P.2d 1222, 1224 (1985). Additionally, the warrantless inventory search may not extend to the locked trunk of the vehicle absent consent by the owner or manifest necessity to open the trunk. State v. White, 135 Wash. 2d 761, 772, 958 P.2d 982, 987 (1998).

The general rule that still holds true today was established in 1976. In South Dakota v. Opperman police impounded and inventory searched a vehicle that had been illegally parked. 428 U.S. at 366. The court held that when impounded as part of a “community caretaking function”, the warrantless search of the vehicle was not unreasonable under the United States constitution if conducted following standard police procedures. Id. at 368-376. The Court reasoned that “the expectation of privacy as to automobiles is further diminished by the obviously public nature of automobile travel” and by following standards approved throughout the country, the search can not be unreasonable. Id. at 368-376. See also United States v. Cormier, 220 F.3d 1103 (9^th Cir. 2000); United States v. Wanless, 882 F.2d 1459 (9^th Cir. 1989); United States v. Chavez-Vernaza, 844 F.2d 1368 (9^th Cir. 1987); Colorado v. Bertine, 479 U.S. 367 (1987).

In addition to Opperman, the persuasive authority of United States v. Duguay is useful in assessing the permissibility of automobile impoundment. The seventh circuit court of appeals held that an impoundment is reasonable as part of the community caretaking function if conducted pursuant to standardized policy. United States v. Duguay, 93 F.3d 346, 351 (7^th Cir. 1996). Noting the lack of federal authority on the reasonableness of impoundment, the court reasoned that Opperman applies to impoundment as well as inventory searches, because the fourth amendment requires reasonableness to be determined under standard procedures. 93 F.3d at 352.

In a case where the validity of an impoundment was contested, State v. Reynoso, the Washington court of appeals articulated the instances where Washington state officers may impound a vehicle. 41 Wn. App. 113, 702 P.2d 1222 (1985). Holding that a vehicle may only be impounded and searched if it is “evidence of a crime”, or “the officer has probable cause to believe it was stolen or used in the commission of a felony”; “as part of a community caretaking function”; or “if the driver has committed one of the traffic offense where the legislature has specifically authorized impoundment”. Reynoso, 41 Wn. App. At 117, 702 P.2d 1224.

State v. White addressed the permissible scope of an inventory search of a vehicle in Washington State. 135 Wash. 2d 763, 958 P.2d at 983. In White the defendant’s vehicle was impounded after a traffic stop. Id. The Supreme Court of Washington held that opening the locked trunk of a vehicle during a warrantless search violated the defendants privacy rights under Washington constitution article I, §7. 135 Wash. 2d at 771, 958 P.2d at 987. The court reasoned that the purpose of an inventory search is to find, list, and secure an arrested persons property from loss and opening the locked trunk without a showing of necessity is not consistent with this purpose. 135 Wash. 2d at770, 958 P.2 d at 986. See also State v. Houser, 95 Wash. 2d 143, 622 P.2d 1218 (1980).

There is a lack of information on the record regarding the circumstances surrounding the officer’s decision to impound Kerr’s vehicle. The prosecution will most likely argue that the impound was done as part of a community caretaking function, as there is no indication that the officers had reason to believe the vehicle was stolen, used in the commission of a felony, or that the statute under which Kerr was arrested specifically authorized impoundment. Reynoso, 41 Wn. App. At 117, 702 P.2d 1224. If the prosecution were able to substantiate their claim of community caretaking function with facts showing “the car posed a threat to public safety, impeded traffic, or there was not another driver available to remove the vehicle” (Reynoso, 41 Wn. App. At 118, 702 P.2d at 1224), the impound would be valid. However, this does not appear to be the case

Assuming the impound was valid under the fourth amendment, the scope of the inventory search would still serve to invalidate the evidence. Without consent or a showing of manifest necessity, opening the trunk of the vehicle during and inventory search is a step that violates the defendant’s fourth amendment rights. Houser, 95 Wash. 2d at 155, 622 P.2d at 1226. The officers stated that the defendant was nervous and fidgety when they pulled him over. However, common experience tells us that a nervous reaction to a traffic stop is an ordinary response. In addition, the court did not find necessity in Houser where the defendant could not produce a driver’s license and attempted to identify himself as someone else. 95 Wash. 2d at 146, 622 P.2d at 1221. Nor did the court find it necessary to open the trunk in White after the defendant misidentified himself, was operating a vehicle with a revoked license, the officer was unsure of the true ownership of the vehicle, and the defendant had many outstanding warrants. 135 Wash. 2d at 765, 958 P.2d at 984. Under the facts of Kerr’s case it does not appear the officers had met the required test to justify intrusion into the trunk of the vehicle. Therefore article I, §7 of the constitution of Washington state has been violated, in turn violating the fourth amendment of the United States constitution.

The prosecution would like to assert that odd behavior would establish a necessity to open the trunk of the vehicle during an inventory search. However, the adherence to this rule would establish the precedent that not only can an individual be stopped, arrested, and his vehicle impounded for a minor traffic violation; the officers could then search the vehicle to their heart’s content.

Not only was the impoundment of the automobile unreasonable, the opening of the trunk was also a violation of the rights afforded to the defendant through the fourth amendment to the constitution of the United States as well as the constitution of the state of Washington. Therefore, the evidence seized during the impoundment and inventory search has been tainted as fruits of an illegal search and seizure.

CONCLUSION

The Port Angeles police officers were well on their way to making a good case against a person in the possession of a large amount a of marijuana, but they violated state law in the impoundment and inventory search of the defendant’s automobile. Even so, in many circumstances evidence that has been illegally seized by state officers can still be admissible in a federal prosecution if the defendant’s protection from unreasonable searches and seizures under the fourth amendment has not been violated. In instances of vehicle impoundment and inventory searches, the reasonableness of the search and seizure under the fourth amendment is determined under state law. The decision to stop Kerr and arrest him was reasonable, but the impoundment and inventory search can not be justified. The impound was not done as part of a community caretaking function and there was not a manifest necessity to justify opening the trunk of vehicle during the inventory search. Therefore, the motion to suppress the evidence should be granted. In the words of the jurist Benjamin Cordozo “The criminal is to go free because the constable has blundered.” Opperman, 364 U.S. at 217, (citing People v. Defore, 150 N.E. 585, 587 (1926)).