Opinion
No. 67162-6-I.
Filed: July 25, 2011. UNPUBLISHED OPINION.
Appeal from a judgment of the Superior Court for Kitsap County, No. 09-1-01416-5, Anna M. Laurie, J., entered March 31, 2010.
Affirmed by unpublished opinion per Grosse, J., concurred in by Leach, A.C.J., and Appelwick, J.
A traffic stop is not an unconstitutional pretext stop when, as here, the officer who made the stop was not conducting surveillance of the vehicle but observed the traffic violations while on routine patrol, the officer's initial investigation was focused on the driver and related to the driving, and the later search of an item in the car and the car itself was conducted only after a passenger was arrested on a warrant and the driver gave consent to the search. Accordingly, we affirm.
FACTS
On October 22, 2009, Shalam Das was stopped by Bremerton Police Officer Billy Renfro for improper signaling and an improper muffler. Upon contacting Das, the officer noticed that he reacted unusually to the patrol vehicle light. Based on his training and experience he suspected that this reaction was due to Das being under the influence of a central nervous system stimulant. Das was unable to produce a driver's license and registration when asked to do so, but then told the officer he might have an old license in the trunk of the car. When Das proceeded to open the trunk, the officer noticed what appeared to be a firearm in the trunk. The officer then placed Das in handcuffs and detained him for safety reasons. After a few minutes, the officer determined that the firearm was only a starter pistol, released Das and allowed him to go back to his car.
The officer then recognized the passenger in the car as someone wanted on a Department of Corrections warrant. The officer verified the warrant and placed the passenger under arrest. At the time of the arrest, the officer noticed a backpack in the passenger seat. When the officer asked the passenger about the backpack, he denied ownership. Das also denied ownership, but as the apparent owner and operator of the car, gave the officer consent to look inside the backpack. A search of the backpack revealed a quantity of methamphetamine and the passenger's identification. The officer then asked Das for consent to search the car and Das gave consent. The officer found an eyeglass case with several small baggies inside that contained residue that appeared to be methamphetamine. Das was then arrested for possession of methamphetamine.
The State charged Das with one count of possession of a controlled substance. Before trial, Das moved to suppress evidence of the methamphetamine, contending that it was the product of an illegal search and seizure. The court held a CrR 3.6 hearing and denied the motion. The court ruled that the stop and search were lawful, concluding that the stop of Das' vehicle was not pretextual, that the permission to search the vehicle did not exceed the scope of the stop, and that Das knowingly and voluntarily gave consent to search the vehicle.
The case proceeded to trial and the jury found Das guilty as charged. The court sentenced him to 12 months confinement. Das appeals.
ANALYSIS
Das contends that the trial court erred by denying his CrR 3.6 motion to suppress because there were insufficient grounds for a traffic stop and the stop was an unconstitutional pretext stop. We disagree.
Das first argues that there were insufficient grounds to stop him for failure to use a turn signal or having a defective muffler. The State contends that because Das did not raise these arguments below and in fact conceded in the trial court that the officer did have a basis to stop him for these traffic violations, he has waived the issue on appeal. The record supports the State's contentions. When specifically asked by the court if he was arguing that there was no basis for issuing a citation for these traffic infractions, he conceded that the officer had sufficient basis to cite him for committing the infractions. He instead argued that the infractions were not the true reason for the stop, but were a pretext to investigate and discover evidence of a secondary crime:
THE COURT: You are not arguing that [the officer] didn't have the authority to give him a ticket?
[DEFENSE COUNSEL]: Certainly not, Your Honor.
THE COURT: And for the muffler, are you?
[DEFENSE COUNSEL]: Certainly not, Your Honor. However, I don't believe that those were the officer's motivations in this case, per his own testimony. So that, your Honor, is my argument regarding pretext.
Thus, by failing to assert this argument below and in fact introducing the claimed error at trial, Das has waived the issue and is prevented from now challenging it on appeal under the invited error doctrine.
State v. Henderson, 114 Wn.2d 867, 868, 792 P.2d 514 (1990); State v. Smith, 82 Wn. App. 153, 162-63, 916 P.2d 960 (1996) (defendant barred from challenging finding of deliberate cruelty when defense counsel conceded that deliberate cruelty existed). The doctrine applies to preclude appellate review even when constitutional issues are involved. State v. Carpenter, 52 Wn. App. 680, 683-84, 763 P.2d 455 (1988).
Nonetheless, the claim lacks merit because the trial court's findings are supported by sufficient evidence. A trial court's findings in support of a ruling on a suppression motion must be supported by substantial evidence. Substantial evidence is "`evidence in sufficient quantum to persuade a fair-minded person of the truth of the declared premises.'"
State v. Ross, 106 Wn. App. 876, 880, 26 P.3d 298 (2001).
State v. Jeannotte, 133 Wn.2d 847, 856, 947 P.2d 1192 (1997) (quoting Olmstead v. Dep't of Health, 61 Wn. App. 888, 893, 812 P.2d 527 (1991)).
Whether a traffic stop is legitimate does not turn on whether a violation in fact occurred. "Rather, an officer must have probable cause that an infraction occurred." RCW 46.61.305 prohibits a driver from moving a vehicle right or left without giving the appropriate signal as follows: "A signal of intention to turn or move right or left when required shall be given continuously during not less than the last one hundred feet traveled by the vehicle before turning." Here, the officer testified that Das did not signal until about 40 feet before making the turn. No other evidence was produced to refute this testimony. Thus, the officer had probable cause to believe Das committed the infraction.
State v. Nichols, 161 Wn.2d 1, 13, 162 P.3d 1122 (2007).
State v. Prado, upon which Das relies, does not require a different result. Unlike here, the defendant's conduct in Prado did not amount to the claimed traffic violation. There, the traffic stop was based on RCW 46.61.140(1), which provided that a vehicle shall be driven "as nearly as practicable" entirely within a single lane. The defendant had crossed the lane line for one second by two tire widths on an exit lane. The court held that the legislature's use of the language "as nearly as practicable" demonstrated a recognition that "brief incursions over the lane lines" will occur and concluded that the defendant's actions did not justify a belief that the vehicle was operated in violation of the statute.
145 Wn. App. 646, 186 P.3d 1186 (2008).
Prado, 145 Wn. App. at 649.
But the statute involved here contains no such qualifying language and states simply that signals made less than 100 feet of the turn violate the statute. Indeed, in State v. Lemus, the court held the plain language of the statute required a signal for at least 100 feet before making a turn or move to the left or right and concluded that an officer had probable cause to stop the defendant when he did not use his signal until the tire of his vehicle began to cross the lane line. Likewise here, the officer had probable cause to stop Das when he failed to signal 100 feet before the turn.
103 Wn. App. 94, 99, 11 P.3d 326 (2000).
There was also sufficient evidence that the officer had a basis to stop Das for driving with an improper muffler. RCW 46.37.390 requires working mufflers on all vehicles as follows:
Every motor vehicle shall at all times be equipped with a muffler in good working order and in constant operation to prevent excessive or unusual noise, and no person shall use a muffler cut-out, bypass, or similar device upon a motor vehicle on a highway.
The officer testified that he observed the car to have an "unmuffled exhaust," which he believed to be a "defective equipment violation." While Das points out that he did not provide additional details about this violation, there was no further evidence produced to refute his testimony and in fact Das conceded that there was a factual basis for this violation.
Das next contends, as he did below, that the stop was an unconstitutional pretext stop to search for evidence. He contends that the reason for the stop was not for the traffic violations but to investigate him for a secondary crime, such as driving under the influence. We disagree.
"[A] traffic infraction may not be used as a pretext to stop to investigate for a sufficient reason to search even further." "An unlawful pretext stop occurs when a police officer stops a vehicle in order to conduct a speculative criminal investigation unrelated to the driving, and not for the purpose of enforcing the traffic code." To determine whether a traffic stop is a pretext for accomplishing a search, "the court should consider the totality of the circumstances, including both the subjective intent of the officer as well as the objective reasonableness of the officer's behavior."
State v. Ladson, 138 Wn.2d 343, 353, 979 P.2d 833 (1999).
State v. Montes-Malindas, 144 Wn. App. 254, 256, 182 P.3d 999 (2008) (citing Ladson, 138 Wn.2d at 349).
Ladson, 138 Wn.2d at 359.
Das relies on State v. Montes-Malindas, where the court held that a traffic stop was unconstitutionally pretextual when an officer pulled a van over for driving without its headlights on for only a short distance and found evidence of drugs and a firearm during a search of the vehicle and its occupants. In Montes-Malindas, an officer observed the occupants in a van in a parking lot acting suspiciously and decided to conduct surveillance of the parties. The van eventually left the parking lot without its headlights on and the officer followed. A short time later, the van turned on its headlights. The officer then radioed in that he was going to stop the van and pulled the van over. The officer approached the passenger side of the van for "safety reasons," and determined that one of the passengers was the van owner and the driver did not have a license or identification. The driver was then arrested for not having a valid operator's license and the passengers were checked for weapons. Narcotics paraphernalia was found on one of the passengers, who was then arrested for possession. A firearm was also found in the van during a search incident to arrest and a baggie containing methamphetamine that the driver had in his hand during the arrest was found in the patrol car. The driver was charged with possession of methamphetamine and unlawful possession of a firearm.
144 Wn. App. 254, 182 P.3d 999 (2008).
Montes-Malindas, 144 Wn. App. at 256-57.
Montes-Malindas, 144 Wn. App. at 258.
Montes-Malindas, 144 Wn. App. at 258.
Based on the totality of the circumstances, the court concluded the stop was pretextual. First, the court noted that the facts suggested that the officer was not on routine patrol, but was conducting surveillance on the van. The court noted that the officer's initial suspicions of the activity he saw in the parking lot were probably on his mind when he stopped the van. The court also noted that the fact that he spoke to the passengers first, rather than the driver, suggested that the stop was premised on something other than the driver's actions. Additionally, the court noted that the request for back up assistance suggested that the officer was preparing for something more than a traffic stop. The court further noted that it was not reasonable for the officer to stop the van for the claimed traffic violation after it had turned its lights on.
Montes-Malindas, 144 Wn.2d at 261.
Montes-Malindas, 144 Wn.2d at 261.
Montes-Malindas, 144 Wn.2d at 262.
But here, the totality of the circumstances does not suggest the stop was pretextual. Unlike in Montes-Malindas, there was no prior surveillance before the stop. Rather, the officer testified that he was on routine patrol when he saw the car commit the traffic infractions and pulled it over as soon as he observed the violations. The claimed investigation for the secondary crime of driving under the influence, if any, occurred only after the stop when the officer noticed the driver's reaction to the light.
While Das points to the fact that there was a back up officer at the stop, suggesting that the officers were investigating something more than a traffic stop, the record does not indicate that the officer who stopped the car actually called for back up. Rather, he simply testified that "some officers show up on a regular basis, stop by other officer's stops. I do. I don't recall if I asked for another officer to stop by or if Officer Thuring just stopped by."
Additionally, unlike in Montes-Malindas, the officer focused on the driver and contacted him first, asking for his license and registration. The investigation only expanded when Das told the officer his license might be in his trunk and Das was briefly detained while the officer verified that what appeared to be a firearm in the trunk was only a starter pistol. It was not until after Das was released to go back to his car after the brief detention that the officer contacted the passenger and recognized him as wanted on a warrant. Nor did the officer conduct a weapons pat down of the passenger before his arrest or arrest Das for not having a valid license and proceed with a search incident to that arrest, as in Montes-Malindas. Rather, the search only came about after the officer arrested the passenger on the warrant and saw the backpack and after Das gave consent to search the backpack and car. Thus, based on the totality of the circumstances, the trial court did not err by concluding that the stop was not pretextual and the search was lawful.
We affirm the judgment and sentence.
WE CONCUR: