6/1/16 Arizona Revised Statute 28-3511, the Impoundment statute, authorizes the impoundment of a vehicle if a person with a suspended license “is” or “was” driving the vehicle.
In State v. Wasbotten, the defendant (Driver 2) challenged the legality of the seizure of illegal drugs from a rented vehicle he was driving, though he was not the person who leased the vehicle. Prior to the stop, the person who leased the vehicle (Driver 1) was observed by an officer driving the vehicle lawfully. The officer then observed the vehicle stop and Driver 1 and the passenger (Driver 2) switched so that Driver 2 was then driving. The officer then observed Driver 2 commit a traffic infraction and stopped the vehicle based on the infraction. The now-passenger (Driver 1) had a suspended license. Because Driver 1 had a suspended license the officer impounded the vehicle pursuant to 28-3511. After the impoundment the officer conducted an inventory search of the vehicle and found illegal drugs.
In the trial court Driver 2 was charged with possession of drugs. He moved to suppress use of the drugs at trial by saying that he had standing (or, the right) to do so because he had a possessory interest in the rented vehicle. He also said that since the impoundment statute authorizes impoundment only when a person with a suspended license “is” driving and since at the time of the stop of the vehicle the person with a suspended license (Driver 1) was not driving there was no legal authorization to impound the vehicle. After the impoundment of the vehicle the police were authorized to conduct an inventory search of the vehicle and in the process of the inventory search found the illegal drugs. Without the impoundment of the vehicle the drugs never would’ve been found. Therefore, Driver 2 argued there was no lawful authority for the impoundment because the person with the suspended license (Driver 1) was not driving at the time of the stop, therefore the inventory search was illegal and use of the drugs at trial should be suppressed.
The trial court judge agreed with Driver 2’s argument and granted the motion to suppress. The state then appealed. On appeal the Court of Appeals held Driver 2 did in fact have a possessory interest in the rented vehicle even though he was not on the vehicle lease. Since he had a possessory interest he had standing to challenge the lawfulness of the search of the vehicle, and the seizure of the drugs. However, the court said that under 28-3511, a vehicle may be impounded if the vehicle “is”, or “was” being driven by a person with a suspended license. Since Driver 1 had a suspended license and “was” driving earlier the Court of Appeals upheld the impoundment and subsequent search of the vehicle, and seizure of the drugs, which meant they could be used at trial.
Even though the defendant lost on appeal, the principle that a person who is not on the lease of a rented vehicle has a possessory interest in the vehicle and has standing to challenge searches of the vehicle is important because several federal courts have ruled against that position. Therefore persons in Arizona who are not on the lease of a rented vehicle have greater privacy rights than people in other states may have.
The case is State v. Wasbotten, No. 1 CA-CR 15-0556, and may be found at:
http://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2016/1CA-CR15-0556.pdf
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