State v. Simpson

622 P.2d 1199, 95 Wash. 2d 170, 1980 Wash. LEXIS 1456

• Court: Washington Supreme Court
• Decided: December 31, 1980
• Docket: 45931
• Status: Published

Opinions

Williams, J. —

This case comes before us on certification from the Court of Appeals. The State has appealed from a Superior Court order granting respondent's motion to suppress evidence. We affirm.

Patrolmen Larry McCluskey and Steve Loyer of the Aberdeen Police Department went to the residence of respondent Jerry Simpson and waited there to arrest him on a warrant charging first degree forgery. After a time, respondent drove up in a Chevrolet pickup truck with big tires, mag wheels, and two beer decals in the back window. He parked in front of the residence, got out, and locked the truck. The officers then approached him, and after respondent identified himself, they placed him under arrest.

Before returning to the station, McCluskey noted the number on the rear license plate and radioed for a registration check on the truck. He testified he felt that the "vehicle did not match" respondent who was, in McCluskey's opinion, somewhat older than one likely to own such a truck.

The officers transported respondent to jail, where his personal possessions including the truck key were inventoried and placed in a property box. At the station, McClus-key received the following return on his registration request: "Not a current record, license has been cancelled, see a different license number." A driver's check on the respondent revealed that his driver's license had been suspended. After conferring with his captain, McCluskey concluded that either the license plate had expired or been stolen, or the vehicle was stolen. He did not discuss the matter with respondent.

The two officers then returned to impound the truck because it was improperly licensed. At that point Loyer noticed for the first time that the front license plate was missing. McCluskey testified that he next unlocked the truck with the key he had taken from the police property box and checked the vehicle identification number (VIN) "to ascertain who the vehicle was registered to. I didn't know the vehicle was stolen." Upon learning the VIN did not match the VIN assigned to the license plate, he ran another check and found the truck was stolen. Following a search of the truck's interior, McCluskey impounded the vehicle, testifying later that he was compelled to retain the invalid license plate and the vehicle "until we could find out what actually occurred."

Following all these events, the officers advised respondent of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). He waived his rights, was then questioned about the truck, and ultimately admitted he had purchased it with knowledge it was stolen.

At a pretrial hearing, respondent moved to suppress both the evidence produced by the seizure of the VIN and his incriminating statements to the police. The trial court held that the inspection of the VIN violated the Fourth Amendment and suppressed the evidence and the statements as the fruits of an unconstitutional search. The State appealed.

I

The State first contends that respondent Simpson may not raise any Fourth Amendment objections to the search in this case because an individual has no Fourth Amendment privacy rights in a stolen vehicle.¹ Respondent argues that he is entitled to raise his Fourth Amendment claims under the "automatic standing" doctrine of Jones v. United States, 362 U.S. 257, 4 L. Ed. 2d 697, 80 S. Ct. 725, 78 A.L.R.2d 233 (1960).

As a general rule, the '"rights assured by the Fourth Amendment are personal rights, [which] . . . may be enforced by exclusion of evidence only at the instance of one whose own protection was infringed by the search and seizure.'" Rakas v. Illinois, 439 U.S. 128, 138, 58 L. Ed. 2d 387, 99 S. Ct. 421 (1978); United States v. Salvucci, 448 U.S. 83, 65 L. Ed. 2d 619, 100 S. Ct. 2547 (1980). Thus, a defendant generally may challenge a search or seizure only if he or she has a personal Fourth Amendment privacy interest in the area searched or the property seized. Sal-vucci, at 86-87; Rakas, at 140. The defendant must personally claim a "'justifiable,' . . . 'reasonable,' or . . . 'legitimate expectation of privacy' that has been invaded by governmental action." Smith v. Maryland, 442 U.S. 735, 740, 61 L. Ed. 2d 220, 99 S. Ct. 2577 (1979); Rakas, at 143.

Until recently, a special exception to these general Fourth Amendment rules applied in cases in which a criminal defendant had been charged with an offense that has possession of property as an element. In such cases, the defendant could claim "automatic standing" to challenge the search or seizure of contraband or stolen goods even though he or she could not technically have a privacy interest in such property. Jones, at 263-65; Rakas, at 135 n.4. This automatic standing principle has also been recognized as a constitutional rule under our state constitution. State v. Michaels, 60 Wn.2d 638, 646-47, 374 P.2d 989 (1962); Const, art. 1, § 7.

The United States Supreme Court has recently overruled Jones and thereby abolished the Fourth Amendment automatic standing rule. United States v. Salvucci, supra. In order to explain our disposition of this case, it is necessary to explore briefly the original grounds for the automatic standing rule and the Supreme Court's reasons for deciding it should no longer operate.

As explained in Jones, the automatic standing rule was originally created to effectuate two separate policy judgments: (1) The doctrine was said to ensure that the State will not assume contradictory positions by arguing in the suppression hearing that the defendant did not have possession of the property and therefore lacked any Fourth Amendment privacy interests, and then arguing at trial that the defendant was guilty of unlawful possession of the property. The court concluded that " [i]t is not consonant with the amenities, to put it mildly, of the administration of criminal justice to sanction such squarely contradictory assertions of power by the Government." Jones, at 263-64; see also Brown v. United States, 411 U.S. 223, 229, 36 L. , 93 S. Ct. 1565 (1973). (2) The principle was established to ensure in addition that a defendant claiming possession in order to acquire standing in the suppression hearing would not have this evidence used against him at trial on the issue of possession. Jones, at 261-64.

This second policy basis for the rule was partially eliminated when the court in Simmons v. United States, 390 U.S. 377, 19 L. Ed. 2d 1247, 88 S. Ct. 967 (1968), held that a defendant's testimony in a suppression hearing cannot be admitted against him or her at trial. Moreover, the recent decision in Salvucci has likewise abandoned the first policy basis, the "vice of prosecutorial self-contradiction", Brown, at 229. The majority opinion in Salvucci states:

To conclude that a prosecutor engaged in self-contradiction in Jones, the Court necessarily relied on the unexamined assumption that a defendant's possession of a seized good sufficient to establish criminal culpability was also sufficient to establish Fourth Amendment "standing." This assumption, however, even if correct at the time, is no longer so.

The person in legal possession of a good seized during an illegal search has not necessarily been subject to a Fourth Amendment deprivation.

(Footnotes omitted.) Salvucci, at 90-91. Citing Rakas and Rawlings v. Kentucky, 448 U.S. 98, 65 L. Ed. 2d 633, 100 S. Ct. 2556 (1980), the court explained that possession of a seized good was not a substitute for a "factual finding that the owner of the good had a legitimate expectation of privacy in the area searched." Salvucci, at 92. Thus, the court concluded, henceforth the question under the Fourth Amendment is not whether a defendant has a possessory interest in seized items, but whether he has an expectation of privacy in the area searched. If not, mere possession of the item will not confer a right under the Fourth Amendment to contest the legality of a search and seizure. Sal-vucci, at 92-93.

The foregoing summary establishes without dispute that the automatic standing doctrine no longer retains any vitality under the United States Constitution. But our inquiry is not complete until we ascertain whether the state constitutional rule of automatic standing has also been abridged.

It is by now well established that state courts have the power to interpret their state constitutional provisions as more protective of individual rights than the parallel provisions of the United States Constitution. See Oregon v. Hass, 420 U.S. 714, 719, 43 L. Ed. 2d 570, 95 S. Ct. 1215 (1975); Alderman v. United States, 394 U.S. 165, 175, 22 L. Ed. 2d 176, 89 S. Ct. 961 (1969); Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977); Note, Rights of Criminal Defendants: The Emerging Independence of State Courts, 1979 Hamline L. Rev. 83. Such independent interpretation of state constitutional provisions is particularly appropriate when the language of the state provision differs from the federal, and the legislative history of the state constitution reveals that this difference was intended by the framers. See, e.g., People v. Anderson, 6 Cal. 3d 628, 493 P.2d 880, 100 Cal. Rptr. 152 (1972); State v. Brackman, 178 Mont. 105, 582 P.2d 1216 (1978); see generally Note, The New Federalism: Toward a Principled Interpretation of the State Constitution, 29 Stan. L. Rev. 297 (1977).

The language of the search and seizure provision of our state constitution, Const, art. 1, § 7, differs significantly from the fourth amendment to the United States Constitution. The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches mid seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Const, art. 1, § 7, on the other hand, states:

No person shall be disturbed in his private affairs, or his home invaded, without authority of law.

Historical evidence reveals that the framers of the Washington Constitution intended to establish a search and seizure provision that varied from the federal provision. The Constitutional Convention was presented with a proposed state provision identical to the Fourth Amendment, and rejected it in favor of the present Const, art. 1, § 7. See The Journal of the Washington State Constitutional Convention: 1889, 497 (B. Rosenow ed. 1962).

The intentional difference between the state and federal provisions naturally does not permit a reading of the state provision that is more restrictive of defendants' rights than federal law. See Burgett v. Texas, 389 U.S. 109, 114, 19 L. Ed. 2d 319, 88 S. Ct. 258 (1967). However, there is precedent for interpreting this particular language in a state constitution as conferring upon a defendant a higher degree of protection than is provided by the federal constitution. Const, art. 1, § 7 differs from the Fourth Amendment in that it clearly recognizes an individual's right to privacy with no express limitations.

In State v. Brackman, 178 Mont. 105, 582 P.2d 1216 (1978), and State v. Glass, 583 P.2d 872 (Alaska 1978), the state supreme courts held that similar privacy provisions of their state constitutions are clear authority for finding that state law provides a higher degree of protection in search and seizure cases than does the Fourth Amendment. As the Alaska Supreme Court pointed out, there is no comparable express guaranty of privacy in the United States Constitution. Glass, at 875.

Moreover, we have interpreted our own constitution as affording greater protection than the Fourth Amendment in the area of custodial arrests for minor traffic offenses. State v. Hehman, 90 Wn.2d 45, 49, 578 P.2d 527 (1978). We declined there to follow the rules of United States v. Robinson, 414 U.S. 218, 38 L. Ed. 2d 427, 94 S. Ct. 467 (1973), and Gustafson v. Florida, 414 U.S. 260, 38 L. Ed. 2d 456, 94 S. Ct. 488 (1973), holding that the United States Constitution established minimum rights and that we were entitled to find the Washington Constitution extended greater protection.

Accordingly, there is ample basis for interpreting Const, art. 1, § 7 as more protective than the federal constitution. In State v. Michaels, 60 Wn.2d 638, 644-47, 374 P.2d 989 (1962), we held that the state constitution confers automatic standing on defendants who have been charged with an offense that has possession as an element. It remains only to be determined whether there are still sufficient grounds for our retention of the automatic standing rule.

As noted above, the United States Supreme Court has decided that the prosecution no longer is forced to assume contradictory positions in the suppression hearing and at trial, where the inquiry is not whether one has a possessory interest in a seized item, but rather whether the defendant has a legitimate expectation of privacy. United States v. Salvucci, 448 U.S. 83, 93, 65 L. Ed. 2d 619, 629, 100 S. Ct. 2547 (1980). In addition, Simmons, which held that evidence adduced in a suppression hearing to support a claim of violation of Fourth Amendment rights was not admissible as evidence of guilt at trial, partially solved the self-incrimination dilemma which was discussed in Jones.

In Salvucci, the defendants argued that the self-incrimination dilemma is not entirely resolved by Simmons, since the prosecutor may still be permitted to use a defendant's suppression hearing testimony to impeach him or her at trial. Salvucci, at 93. The court declined to address this issue, although it hinted broadly in a footnote that such testimony is admissible as impeachment evidence. Salvucci, at 93 n.8.²

A realistic appraisal of this argument leads us to the conclusion that Simmons, as interpreted by the court in Salvucci, does not provide sufficient protection against the self-incrimination dilemma. In Washington, prior statements made by a defendant are admissible at trial for purposes of impeachment. ER 613; see, e.g., State v. Peele, 10 Wn. App. 58, 67, 516 P.2d 788 (1973). Thus, without automatic standing, a defendant will ordinarily be deterred from asserting a possessory interest in illegally seized evidence because of the risk that statements made at the suppression hearing will later be used to incriminate him albeit under the guise of impeachment. For a defendant, the only solution to this dilemma is to relinquish his constitutional right to testify in his own defense.³ See Salvucci, at 96 (Marshall, J., dissenting).

In our view, our constitution's privacy clause, with its specific affirmation of the privacy interests of all citizens, encompasses the right to assert a violation of privacy as a result of impermissible police conduct at least in cases where, as here, a defendant is charged with possession of the very item which was seized. Any other conclusion allows the invasion of a constitutionally protected interest to be insulated from judicial scrutiny by a technical rule of "standing". The inability to assert such an interest threatens all of Washington's citizens, since no other means of deterring illegal searches and seizures is readily available. See generally Note, The Independent Application of State Constitutional Provisions to Questions of Criminal Procedure, 62 Marq. L. Rev. 596 (1979); Kuhns, The Concept of Personal Aggrievement in Fourth Amendment Standing Cases, 65 Iowa L. Rev. 493, 521-24 (1980); Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 409-39 (1974).

Under these circumstances, we discern both a continuing policy basis and firm state constitutional grounds for adherence to the automatic standing rule. The rule is already established under our state constitution and has served our state well for 17 years, Michaels, at 646-47, and we decline to abandon it for the reasons set forth above.

The question then becomes whether the respondent in this case can claim the protection of the automatic standing rule. As we explained in Michaels, at pages 646-47, a defendant has "automatic standing" to challenge a search or seizure if: (1) the offense with which he is charged involves possession as an "essential" element of the offense; and (2) the defendant was in possession of the contraband at the time of the contested search or seizure. See also Brown v. United States, 411 U.S. 223, 228-29, 36 L. Ed. 2d 208, 93 S. Ct. 1565 (1973); Jones v. United States, 362 U.S. 257, 263-65, 4 L. Ed. 2d 697, 80 S. Ct. 725, 78 A.L.R.2d 233 (1960); see generally 3 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 11.3, at 589-95 (1978). The respondent in this case was charged with first degree possession of stolen property; a requisite element of this offense is possession of the stolen goods. RCW 9A.56-.140(1) and .150(1). Thus, respondent was charged with an offense which has possession as an "essential" element. See, e.g., State v. Van Ackeren, 194 Neb. 650, 235 N.W.2d 210 (1975). Respondent also had possession of the property at the time of the search. When the search took place, the locked truck was located directly outside respondent's house where he had left it, and the key to the truck was being held for the respondent by the police. Thus, respondent had the requisite relationship to the seized property at the time when the contested search took place. See generally 3 W. LaFave, at 590; see Brown, at 228-29.

Respondent is, therefore, entitled to the full protection of the automatic standing doctrine. He has the right to invoke all the privacy interests that an individual properly in possession of the truck could assert. See Rakas v. Illinois, 439 U.S. 128, 135 n.4, 58 L. Ed. 2d 387, 99 S. Ct. 421 (1978).

II

The State next claims that, even if respondent has automatic standing and can accordingly assert all the privacy interests of an individual properly in possession of a car, he nevertheless does not have a legitimate expectation of privacy in a VIN because even a person properly in possession of a truck would not have a legitimate expectation of privacy in a VIN. The State also argues that even if respondent is found to have a legitimate expectation of privacy in a VIN, the warrantless search of the VIN was reasonable and conformed to Fourth Amendment requirements.

The conclusion that respondent has automatic standing to challenge the search in this case does not preclude the State from claiming that he nevertheless lacks a legitimate expectation of privacy in the VIN. A defendant who has acquired automatic standing in effect stands in the shoes of an individual properly in possession of the property that was searched or seized. In this case, therefore, a person rightfully in possession of the truck would have a "'legitimate' expectation of privacy" in it. Rakas, at 143 n.12. However, such a person may not have a legitimate expectation of privacy in sill parts of his protected property at all times. See, e.g., Katz v. United States, 389 U.S. 347, 351, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967) ("What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection."). Thus, it is necessary to determine whether a person with a legitimate expectation of privacy in a motor vehicle would also have a legitimate expectation of privacy in that vehicle's VIN.

The VIN is a serial number which is assigned to automobiles and trucks for the purpose of identifying and routinely keeping track of the ownership of vehicles. The VIN may be placed by the vehicle's manufacturer in any one of several possible places on or in the vehicle: on the dashboard where it can be read by anyone standing outside the vehicle and looking through the windshield; on the bottom of the vehicle where it can be viewed by crawling underneath the vehicle; inside the hood where it can only be seen by opening the hood; or on the side of the doorpost where it can only be examined by opening the vehicle door. 2 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 2.5, at 357-58 (1978).

As courts in other jurisdictions have recognized, the degree of privacy interest which an individual may have in his car or truck VIN is determined by three separate factors: (1) the extent of the privacy interest in a motor vehicle, which is subject to special Fourth Amendment rules as a result of its mobility; (2) the degree of privacy interest in the part of the vehicle to which the VIN has been affixed; and (3) the amount of privacy interest in the serial number itself. See, e.g., United States v. Powers, 439 F.2d 373, 375-76 (4th Cir.), cert. denied, 402 U.S. 1011, 29 L. Ed. 2d 434, 91 S. Ct. 2198 (1971).

Because of the inherent mobility of a motor vehicle, it is impracticable in many situations to obtain a warrant prior to a vehicle search. In situations of this type, police officers may conduct a warrantless search as long as they have probable cause to believe that the vehicle contains contraband or evidence of a crime. Arkansas v. Sanders, 442 U.S. 753, 760-61, 61 L. Ed. 2d 235, 99 S. Ct. 2586 (1979); Carroll v. United States, 267 U.S. 132, 69 L. Ed. 543, 45 S. Ct. 280, 39 A.L.R. 790 (1925). Accordingly, an individual would have a lessened privacy interest in his VIN in those situations in which the mobility of the vehicle renders it impracticable to obtain a warrant prior to searching the VIN. See, e.g., United States v. Zemke, 457 F.2d 110, 113 (7th Cir.), cert. denied, 406 U.S. 947, 32 L. Ed. 2d 335, 92 S. Ct. 2051 (1972); State v. Colon, 6 Conn. Cir. Ct. 722, 725, 316 A.2d 797 (1973); Commonwealth v. Navarro, 2 Mass. App. 214, 218-22, 310 N.E.2d 372 (1974). Of course, the consideration of mobility would not diminish the individual's privacy interest in those situations in which the motor vehicle is not readily moveable and the officer has a practicable opportunity to obtain a warrant before searching the vehicle. See, e.g., State v. Ercolano, 79 N.J. 25, 397 A.2d 1062 (1979); see generally 2 W. LaFave, § 7.2(b), at 519-25.

An individual has only a limited privacy interest in the VIN serial number, which is recorded and used for public identification purposes, and thus is "quasi-public information". See, e.g., United States v. Brown, 535 F.2d 424, 428 n.1 (8th Cir. 1976); Powers, at 375-76; Shirley v. Commonwealth, 218 Va. 49, 56-57, 235 S.E.2d 432 (1977).

The degree of privacy interest in the part of the vehicle where the VIN is located is a separate question from the extent of privacy interest in the serial number itself. The difference between these matters is illustrated by the principles governing searches of the serial identification numbers of other types of commercial products. A serial identification number on a product such as a television set is also "quasi-public information" in that it is recorded and used for identification purposes. Yet, in State v. Murray, 84 Wn.2d 527, 527 P.2d 1303 (1974), we concluded that an individual had a full privacy interest in the serial number which was stamped on the bottom of his television set and totally concealed from the view of the police officers in his apartment. Although the number itself was quasi-public in that it was recorded elsewhere and used for identification purposes, the bottom of the television set was a private and fully protected area. The difference between a privacy interest in a number and a privacy interest in a place where the number is written down is also apparent in the context of telephone company recordings of the phone numbers dialed from a private telephone. The United States Supreme Court held in Smith v. Maryland, 442 U.S. 735, 61 L. Ed. 2d 220, 99 S. Ct. 2577 (1979), that an individual does not have a legitimate or reasonable expectation of privacy in the numbers dialed from his telephone. The court was careful to point out, however, that the numbers were recorded by a device installed in the telephone company office and it was not necessary to invade the '"constitutionally protected area'" of the person's home in order to record the numbers. Smith, at 741.

The location of the VIN can have a significant effect on an individual's privacy interest. When VIN's are stamped on the exterior parts of a vehicle or on the part of the dashboard that is plainly visible through the windshield, the numbers are fully exposed to the public. As the United States Supreme Court explained in Katz, at 351, the knowing exposure of private property to the public is not a subject of Fourth Amendment protection. Thus, in approving searches of VIN's, courts have emphasized that the VIN was in plain view on an exterior part of the vehicle or on the dashboard. E.g., Brown, at 426 (dashboard); Zemke, at 112-13 (exterior of motorcycle); Colon, at 725 (dashboard); Tate v. State, 544 P.2d 531, 536 (Okla. Crim. App. 1975) (exterior of camper); see generally 1 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 2.5(d), at 357-58 (1978). A different question is presented when the VIN is hidden from public view on some interior portion of the vehicle, and it is necessary to enter the vehicle in order to view it. See, e.g., People v. Brooks, 405 Mich. 225, 244, 274 N.W.2d 430 (1979) (holding that there was no reasonable expectation of privacy in a VIN on a visible exterior portion of a vehicle, and recognizing that a different Fourth Amendment question would have been presented if the VIN had been on an interior portion of the vehicle); 1 W. LaFave, at 358-61.

In cases involving searches of VIN's, therefore, the degree of privacy interest in the VIN must be determined by considering the mobility of the vehicle, the degree of privacy expectation in the area of the vehicle in which the VIN is located, and the limited privacy interest in the serial number itself. The cases typically involve a VIN which is in open view on the dashboard or exterior of a readily moveable vehicle. See, e.g., Brown, Zemke, and Colon.⁴ In these cases, the courts have concluded that the limited privacy interest in the VIN, the limited privacy expectation in the dashboard or exterior of the vehicle, and the limited privacy right in a moveable vehicle all combine to drastically reduce the individual's privacy interest in his VIN. These courts have, accordingly, tested the propriety of the search of the VIN with the standard established in Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), for searches which infringe upon limited privacy interests: police officer awareness of "specific and articulable facts" which would lead a reasonable person of ordinary caution to believe that the action taken was appropriate. See, e.g., Colon, at 725-26; see also, e.g., United States v. Powers, 439 F.2d 373, 374-76 (4th Cir.), cert. denied, 402 U.S. 1011, 29 L. Ed. 2d 434, 91 S. Ct. 2198 (1971).

Apparently, no court has ever resolved the precise question which is presented in this case: the degree of expectation of privacy in a VIN which is located on the interior of a closed, locked door of a lawfully parked, immobile vehicle. See United States v. Baker, 452 F.2d 21, 23 (5th Cir. 1971), cert. denied, 405 U.S. 974, 31 L. Ed. 2d 248, 92 S. Ct. 1195 (1972) (explaining that "[t]he cases have . . . explicitly avoided passing on the Fourth Amendment status of a vehicle identification number check of a locked vehicle", and then resolving that issue with respect to a vehicle that was readily moveable); Cotton v. United States, 371 F.2d 385, 394 (9th Cir. 1967) (expressly reserving the question of "whether [an officer] can break into a car without a warrant if the car be locked").

We conclude that respondent Simpson, standing in the shoes of an individual with a legitimate expectation of privacy in the locked truck, had a fully protected legitimate expectation of privacy in the VIN under the Fourth Amendment and Const, art. 1, § 7. A '"legitimate expectation of privacy''' is a privacy expectation which is both subjectively held and "objectively . . . 'justifiable' under the circumstances." Smith v. Maryland, 442 U.S. 735, 740, 61 L. Ed. 2d 220, 99 S. Ct. 2577 (1979). As earlier discussed, respondent could have only a limited expectation of privacy in the VIN serial number itself, since this number was "quasi-public" information. However, the VIN serial number was on a plate which was hidden from public view and which could only be examined by entering into the private interior of the truck. Moreover, respondent had not only closed, but also locked the door of the vehicle.⁵ The very act of "locking] the doors . . . against intruders" manifests a subjective expectation of privacy which is objectively justifiable. United States v. Chadwick, 433 U.S. 1, 11, 53 L. Ed. 2d 538, 97 S. Ct. 2476 (1977); United States v. Presler, 610 F.2d 1206, 1213-14 (4th Cir. 1979).⁶ Finally, the vehicle in this case was lawfully parked on a public street and was not readily moveable since the driver and door key were in police custody. Thus, although respondent did not have a legitimate expectation of privacy in the VIN itself, he had a legitimate expectation that other people would not break open the locked door of the truck in order to view that VIN.

Since there was a fully protected legitimate expectation of privacy in this case, the search of the VIN had to be justified by either a search warrant or one of the exceptions to the Fourth Amendment warrant requirement. Arkansas v. Sanders, 442 U.S. 753, 61 L. Ed. 2d 235, 99 S. Ct. 2586 (1979). The search in this case was conducted without a warrant and therefore it is necessary to determine whether the case comes within any of the exceptions to the warrant requirement.

Ill

A warrantless search is "per se unreasonable" and can be justified only if it falls within one of the " 'jealously and carefully drawn'" exceptions to the Fourth Amendment warrant requirement. Sanders, at 759-60; State v. Houser, 95 Wn.2d 143, 149, 622 P.2d 1218 (1980). The burden is upon the State to show that a warrantless search or seizure falls within one of these exceptions. See Sanders, at 760; Houser, at 149.

The State argues that the warrantless search of the VIN in this case comes within the warrant requirement exception for an inventory search incident to a lawful impoundment of a vehicle. In order to justify a warrantless search on this ground, the State must demonstrate that the impoundment was lawful, and that the inventory search was proper and not a mere pretext for an investigatory search. See South Dakota v. Opperman, 428 U.S. 364, 375-76, 49 L. Ed. 2d 1000, 96 S. Ct. 3092 (1976); see generally 2 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 7.4(a) (1978).

A motor vehicle may be lawfully impounded in certain specific circumstances: (1) as evidence of a crime, if the officer has probable cause to believe that it was stolen or used in the commission of a felony, Houser, at 149-50; (2) as part of the police "community caretaking function," if the removal of the vehicle is necessary (in that it is abandoned, or impedes traffic, or poses a threat to public safety and convenience, or is itself threatened by vandalism or theft of its contents), and neither the defendant nor his spouse or friends are available to move the vehicle, Houser, at 150-52; State v. Hardman, 17 Wn. App. 910, 567 P.2d 238 (1977), review denied, 89 Wn.2d 1020 (1978); State v. Bales, 15 Wn. App. 834, 552 P.2d 688 (1976), review denied, 89 Wn.2d 1003 (1977); and (3) as part of the police function of enforcing traffic regulations, if the driver has committed one of the traffic offenses for which the legislature has specifically authorized impoundment. See State v. Singleton, 9 Wn. App. 327, 332-33, 511 P.2d 1396 (1973); 2 W. LaFave, § 7.4(a).

The impoundment in this case cannot be justified on the basis of probable cause to believe that the vehicle was stolen. The officers knew only that the rear license plate was no longer valid and that the front plate was missing. Although respondent certainly was in violation of traffic regulations, there was not probable cause to believe that he stole the vehicle rather than simply failing to attend to his licensing responsibilities. The officer's conjecture that respondent did not "fit" the vehicle was no more than an "inarticulate hunch," and therefore cannot serve as the basis for a warrantless seizure. Cf. Delaware v. Prouse, 440 U.S. 648, 661, 59 L. Ed. 2d 660, 99 S. Ct. 1391 (1979).⁷

The impoundment also cannot be justified under the community caretaking function. The truck was lawfully parked in front of respondent's house and did not impede traffic or threaten public safety or convenience. The vehicle was safe from vandalism and theft of its contents: it was locked, and the record reveals that there were neighbors who were willing to watch over the truck while respondent was in police custody.

Finally, the vehicle was not subject to impoundment on grounds of the violations of traffic regulations. The legislature has not expressly authorized impoundment for the traffic offenses of cancelled license plates or lack of a front plate. The statutes proscribing the operation of an improperly licensed vehicle, RCW 46.16.010 and .240, are silent on the issue of impoundment, whereas other traffic statutes enacted in the same legislative session expressly authorize impoundment for other offenses. See, e.g., RCW 46.32.060; RCW 46.16.135.

Thus, the impoundment in this case was not lawful, and the warrantless search of the VIN cannot be justified as an inventory search incident to a lawful impoundment. Moreover, even if one were to assume for the sake of argument that the impoundment was lawful, the search would still be improper because, as the trial court expressly found, the inventory in this case was a mere pretext for an investigative examination. The trial court expressly found that

[although he [the officer] claims an intent to make an inventory search, I am satisfied that his main purpose was to obtain the VIN in order to run a check on whether the vehicle had been reported as stolen.

The record fully supports the trial court's finding. The testimony shows that the officer's real purpose in checking the VIN was to follow up on his and his captain's suspicions that the truck was stolen. Since the inventory was a mere pretext for an investigative examination, the warrantless search of the VIN cannot be justified under the inventory exception. See Opperman, at 376.

The search also cannot be justified under any of the other potentially applicable exceptions to the warrant requirement. The search cannot be considered incident to an arrest, because the respondent was not in the truck when arrested and had already been removed from the area when the search of the truck took place. See United States v. Day, 455 F.2d 454 (3d Cir. 1972); 2 W. LaFave, at § 7.1. The exigent circumstances exception does not apply because the automobile was lawfully parked and immobile. See, e.g., United States v. Young, 489 F.2d 914 (6th Cir. 1974).

Since the warrantless search in this case was not justified by any of the exceptions to the warrant requirement, it was unreasonable and in violation of the federal and state constitutions. The trial court's order suppressing the evidence obtained through the search accordingly is affirmed.

Rosellini, Brachtenbach, and Hicks, JJ., concur.

1 The State's precise claim was that respondent lacked "standing" to raise Fourth Amendment objections to the search. Subsequent to the suppression hearing, the United States Supreme Court held in Rakas v. Illinois, 439 U.S. 128, 58 L. Ed. 2d 387, 99 S. Ct. 421 (1978), that the question of a defendant's ability to raise a Fourth Amendment claim will no longer be considered in terms of "standing". According to Rakas, this question should be framed instead in terms of the defendant's "legitimate expectation of privacy" and consequent Fourth Amendment rights in the area searched or property seized. Rakas, at 140, 143; see also United States v. Salvucci, 448 U.S. 83, 87 n.4, 65 L. Ed. 2d 619, 100 S. Ct. 2547 (1980); Smith v. Maryland, 442 U.S. 735, 740, 61 L. Ed. 2d 220, 96 S. Ct. 2577 (1979). As will be made clear in this opinion, however, the concept of standing still retains some validity under the Washington Constitution.

2 In another recent case, the United States Supreme Court held that illegally obtained evidence may be used to impeach a defendant's statements "made in response to proper cross-examination reasonably suggested by the defendant's direct examination ..." United States v. Havens, 446 U.S. 620, 627, 64 L. Ed. 2d 559, 566, 100 S. Ct. 1912 (1980).

3 The damage done to a defendant's case by allowing the state to impeach his testimony by use of suppression hearing testimony has been well expressed by the Pennsylvania Supreme Court in a case in which it declined on independent state grounds to follow the rule of Harris v. New York, 401 U.S. 222, 28 L. Ed. 2d 1, 91 S. Ct. 643 (1971):

"Harris-type use of constitutionally infirm confessions forces upon an accused a grisly Hobson's choice. Either an accused must forgo his right to testify, or he must risk the sure and devastating prejudice occasioned by the prosecution's use of the impermissibly obtained confession at the critical rebuttal stage."

Commonwealth v. Triplett, 462 Pa. 244, 249, 341 A.2d 62 (1975), quoting from Commonwealth v. Woods, 455 Pa. 1, 7, 312 A.2d 357 (1973).

4 In several VIN cases, there were special factors which had the effect of further reducing the individual's expectation of privacy and/or bringing the case within one of the exceptions to the Fourth Amendment warrant requirement. See United States v. Dadurian, 450 F.2d 22, 24-25 (1st Cir. 1971), cert. denied, 405 U.S. 1044, 31 L. Ed. 2d 586, 92 S. Ct. 1329 (1972) (search of VIN was a legitimate inspection in the course of civil attachment of the automobile); United States v. Polk, 433 F.2d 644, 646-47 (5th Cir. 1970) (consent by lawful owner of garage in which automobile located); United States v. Johnson, 413 F.2d 1396, 1399 (5th Cir. 1969), aff'd en banc, 431 F.2d 441 (5th Cir. 1970) (consent); United States v. Graham, 391 F.2d 439, 442-43 (6th Cir.), cert. denied, 393 U.S. 941, 21 L. Ed. 2d 278, 89 S. Ct. 307 (1968) (inventory search incident to lawful impoundment). As Part III of this opinion explains, none of these factors were present in this case.

5 Even though the police officers in this case had a key to the truck door, we must treat the truck as a locked vehicle since it was not constitutionally permissible for the officers to use the key to open the truck door. The police officers were in possession of the key because they were holding it in the police property box for safekeeping while respondent was in custody on the forgery charge. When police arrest an individual, they may be entitled to use personal effects that he was carrying at the time of arrest, as evidence of the offense for which he was arrested. See United States v. Edwards, 415 U.S. 800, 39 L. Ed. 2d 771, 94 S. Ct. 1234 (1974). The police may not, however, use a personal effect such as a key in subsequent investigations of totally unrelated offenses. See, e.g., People v. Vogel, 58 Ill. App. 3d 910, 374 N.E.2d 1152 (1978). Thus, the police in this case committed an unconstitutional seizure when they took a key, which was being held for a forgery suspect, and used it to investigate the separate offense of unlawful possession of a stolen vehicle. Since individuals must not benefit from their unconstitutional actions, we must assume for purposes of analyzing this case that the police did not have the key to the truck door.

6 Of course, this is not to say that an individual is incapable of having a fully protected legitimate expectation of privacy in the interior of an unlocked object. See, e.g., Sanders, at 762 n.9 (defendant had fully protected.privacy interest in unlocked suitcase, just as would an individual possessing a locked suitcase). The fact that a person took the special precaution of locking an object is simply one of several factors which can evidence a subjective justifiable expectation of privacy in the interior of the object.

7 The case law reflects some ambiguity in the requirements for impoundment of an immobile vehicle on the basis of probable cause to believe that the vehicle is evidence of a crime. When the vehicle is readily moveable, the inherent mobility of the vehicle permits a warrantless seizure whenever the police have probable cause to believe that the vehicle is stolen or has been used in the commission of a felony. See State v. Houser, 95 Wn.2d 143, 622 P.2d 1218 (1980). Several courts have concluded, however, that the special consideration of vehicle mobility does not justify this warrant requirement exception in cases in which the vehicle is immobile. See, e.g., People v. Spinelli, 35 N.Y.2d 77, 315 N.E.2d 792, 358 N.Y.S.2d 743 (1974); State v. Ercolano, 79 N.J. 25, 397 A.2d 1062 (1979). Under this analysis, the existence of probable cause to believe that the vehicle is evidence of a crime can justify the warrantless seizure of an immobile vehicle only if the case comes within the special warrant requirement exception for "property in plain view . . . [when] there is probable cause to associate the property with criminal activity." Payton v. New York, 445 U.S. 573, 587, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980). Thus, there would have to be both probable cause to believe that the immobile vehicle is evidence of a crime, and satisfaction of the prerequisites for application of the plain view exception. See, e.g., Spinelli, at 80-81; see generally 2 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 7.3(a), at 547-49 (1978).

If the plain view doctrine is a part of the test for impoundment of immobile vehicles on the basis of probable cause to believe that the vehicle is evidence of a crime, then the officers in this case could not invoke this exception to the warrant requirement. In order to satisfy plain view requirements, the officer must not only inadvertently discover the object in plain view, but must also immediately recognize it as evidence of contraband (see, e.g., State v. Murray, 84 Wn.2d 527, 532-34, 527 P.2d 1303 (1974)), and the officers in this case did not immediately recognize the truck as contraband. See Murray, at 534-35. However, it is unnecessary to decide in this case whether satisfaction of the plain view exception is a necessary part of the warrant requirement exception for impoundment of an immobile vehicle as evidence of a crime. Even if the plain view requirements were not applicable, the police must, at the very least, have probable cause to believe that the vehicle is evidence of a crime. See Houser, at 149. The officers in this case did not satisfy this basic probable cause requirement, and thus this warrant requirement exception in inapplicable.