Opinion
No. 30712-0-II
Filed: May 17, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Thurston County. Docket No: 02-1-00899-6. Judgment or order under review. Date filed: 07/29/2003. Judge signing: Hon. Paula K Casey.
Counsel for Appellant(s), Thomas Edward Doyle, Attorney at Law, PO Box 510, Hansville, WA 98340-0510.
Patricia Anne Pethick, Attorney at Law, PO Box 7269, Tacoma, WA 98406-0269.
Counsel for Respondent(s), Steven Curtis Sherman, Thurston County Pros Ofc, 2000 Lakeridge Dr SW, Olympia, WA 98502-6045.
Noel Kemper appeals his bench trial conviction on stipulated facts for possession of marijuana with intent to deliver. Police seized the marijuana from the trunk of a vehicle in which Kemper was a passenger after they obtained a warrant to search the trunk. At Kemper's suppression hearing, he did not dispute probable cause to issue the search warrant but challenged the preceding stop and canine sniff of the vehicle that had provided that probable cause. As he argued below, Kemper maintains that police lacked an articulable factual basis to make the investigatory stop and that the canine sniff of the exterior of the vehicle was an illegal warrantless search.
Former RCW 69.50.401(a)(1)(iii) (1998).
This warrant is not contained in the record on appeal.
We hold that the vehicle stop was a valid investigatory stop supported by a reasonable, articulable suspicion that the automobile's occupants were involved in drug trafficking. And we hold that because the stop and continuing detention were valid and the canine sniff of the exterior of the vehicle minimally intrusive, no search occurred. We, therefore, affirm.
FACTS
In April 2001, Officer Shirley McLamore of the Thurston County Narcotics Task Force (TNT) received a tip that a house in Lacey, Washington, received deliveries of 20 to 80 pounds of marijuana per week. The confidential informant (CI) reported that the house, 3510 Ruddell Loop Road, was being used as a temporary storage facility for marijuana transported by members of the `Asian Mafia' from Canada to Oregon via Seattle. Report of Proceedings (RP) (Apr. 21, 2003) at 5. According to the CI, a man named Mannie Hernandez was one of the main sources of the marijuana. Officer McLamore discovered that the house's tenant, Simon Biasi, had no recorded employment history, paid rent in cash, and paid utilities with cash or money order.
Officer McLamore testified that she had learned of an `intricate system involving Asians transporting large amounts of marijuana into the United States from Canada.' Report of Proceedings (RP) (Apr. 21, 2003) at 91-92.
Officer McLamore began surveillance of the house on May 2, 2001, in order to note vehicle registration and to identify drivers of the vehicles seen at the house. Police maintained surveillance off and on until November 2001. In March 2002, Officer McLamore learned that the CI had supplied reliable information in other investigations. Officer McLamore resumed surveillance of the residence in May 2002.
Apparently, the residence was extremely difficult to see from the street.
From April 2001 through May 2002, police observed 21 cars at the Biasi residence. Of 18 registered owners, four had drug-related criminal records. Police also observed various rental cars, rented by four different individuals, including Biasi. McLamore testified that drug traffickers often use rental cars because they conceal their identity unless a traffic stop occurs and they are not generally subject to forfeiture.
On May 30, 2002, at around 4:30 p.m., Detective Michael Aalbers of the Lacey Police Department saw a maroon Ford Taurus registered to Aaron Baker of Vancouver, Washington, arrive at the residence. At around 5:40 p.m., a Nissan and a Jeep arrived. The Jeep was registered to Quang Nguyen, a resident of Shoreline, north of Seattle. None of the vehicles or their drivers had been observed at the house before.
The Taurus, occupied by its driver, Baker, as well as by Nicholas Dealy, Kemper, and two dogs, left the residence at around 6:20 p.m., approximately 10 minutes after the other two vehicles left. Officer McLamore, suspecting that there was marijuana in the Taurus, directed Detective Aalbers to perform an investigative stop. At 6:47, Trooper Casto of the Washington State Patrol stopped the Taurus as it was heading southbound on Interstate 5 south of Olympia near Exit 95. Trooper Grant Slish and his K-9, `Daisy,' arrived shortly thereafter.
Trooper Casto's first name does not appear in the record.
The Taurus's three occupants talked to troopers separately and gave inconsistent accounts of their trip. For example, Baker and Dealy informed troopers that they had come up from Vancouver to pick up Kemper, but Kemper told a trooper that all three had traveled from Vancouver so that Kemper's dogs, which were in the car, could run with a friend's dogs.
About 10 to 15 minutes after he had initially talked to Baker, Trooper Slish told Baker he was free to leave but asked whether he would answer a few more questions. Baker replied, `Sure. What?' RP (Apr. 21, 2003) at 143. Trooper Slish asked Baker about the contents of the vehicle and whether he could search it. Baker initially consented to the search but later changed his mind and refused consent.
Trooper Slish then told Baker that he was going to have Daisy sniff the exterior of the vehicle. Trooper Slish had Daisy circle the car, beginning at the driver's side corner of the trunk and going twice over the length of the trunk. Daisy did not react initially. Trooper Slish then pushed on the lid of the closed trunk and it moved about a half inch. He testified that pushing helps circulate air in a trunk. When he did this, Daisy `pinpointed' to the underside of the trunk lid by the rear license plate, putting her nose on it, and gave her `sit' response, which indicated that she had detected drugs. Trooper Slish and Detective Glen Stahle also smelled marijuana after Trooper Slish pushed on the trunk.
Trooper Slish testified that he pushed on the trunk in this case. He also testified that when he is worried about his safety, he sometimes lifts on trunks or hatches to make sure they are secure.
Police obtained a telephonic search warrant and found 12 pounds of marijuana packaged for resale in the trunk. Following a CrR 3.6 hearing, the trial court denied Kemper's motion to suppress the evidence seized and found him guilty on stipulated facts.
Kemper appeals.
ANALYSIS Standard of Review
When reviewing the denial of a suppression motion, we determine whether substantial evidence supports the findings of fact and then determine whether the findings support the conclusions of law. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999); State v. Hill, 123 Wn.2d 641, 644, 647, 870 P.2d 313 (1994). We review de novo the trial court's conclusions of law. State v. Duncan, 146 Wn.2d 166, 171, 43 P.3d 513 (2002) (citing Mendez, 137 Wn.2d at 214).
Investigative Detention
Kemper contends that the police lacked articulable facts upon which to base the investigative detention of the Taurus, and, therefore, the evidence should be suppressed as a fruit of that detention.
We must determine whether substantial evidence supports the trial court's findings and whether the findings support the conclusions of law. Kemper assigned error to nearly all of the findings of fact and conclusions of law, but failed to direct his arguments to specific findings or conclusions of law. Our review shows substantial evidence in the record supporting the trial court's preliminary findings regarding the investigative detention, which culminates in the following finding:
18. [T]he [Taurus] departed the Biasi residence. . . . The vehicle was followed by detectives who believed considering the totality of the circumstances known to them since May, 2001 that they had reasonable grounds to conduct an `investigative stop' of the vehicle once it was clear of the Olympia metropolitan area. These narcotics detectives were experienced and expert in narcotics investigations.
Clerk's Papers (CP) at 54. From this, the trial court concluded:
1. The stop of the defendants' vehicle . . . was a valid investigative stop for investigative purposes.
2. The facts known to the officers were not mere suspicions, but were suspicions based upon facts which were articulated by them as set forth in their testimony and in the Findings [of Fact]. Moreover, these officers were experienced drug detectives, and in light of the articulable facts, coupled with the inferences which could be drawn from those facts, the officers were justified in conducting a `Terry' stop of the vehicle and its occupants.
3. Crime detection and crime prevention are legitimate purposes for investigative stops or detentions. The officers acted upon reasonable suspicions based on objective facts. Thus, the stop was constitutionally valid.
CP at 56-57.
The State bears the burden of proving that a warrantless stop or seizure falls into one of the few `jealously and carefully drawn' exceptions to the warrant requirement. Duncan, 146 Wn.2d at 171-72 (quoting State v. Williams, 102 Wn.2d 733, 736, 689 P.2d 1065 (1984)). These exceptions include consent, exigent circumstances, searches incident to a valid arrest, inventory searches, plain view searches, and investigative detentions. Duncan, 146 Wn.2d at 171-72 (citing State v. Rife, 133 Wn.2d 140, 150-51, 943 P.2d 266 (1997)).
The State asserts that the detention of the Taurus was a valid investigative detention or a `Terry' stop. Under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), police may briefly detain and question an individual even though probable cause is lacking if they have a well-founded suspicion based on objective facts that he is connected to actual or potential criminal activity. See also State v. Sieler, 95 Wn.2d 43, 46, 621 P.2d 1272 (1980).
Article I, section 7 of the Washington Constitution states, `No person shall be disturbed in his private affairs, or his home invaded, without authority of law.' While the phrase `private affairs' has been found to include automobiles and their contents, this does not preclude the warrantless stop of an automobile. State v. Kennedy, 107 Wn.2d 1, 4-5, 726 P.2d 445 (1986).
A police officer making such a stop must be able to point to `specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.' Williams, 102 Wn.2d at 739 (quoting Terry, 392 U.S. at 21). Such facts are "judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search `warrant a [person] of reasonable caution in the belief' that the action taken was appropriate?" State v. Almanza-Guzman, 94 Wn. App. 563, 566, 972 P.2d 468 (1999)
(quoting State v. Barber, 118 Wn.2d 335, 343, 823 P.2d 1068 (1992)). In other words, an articulable suspicion is a `substantial possibility that criminal conduct has occurred or is about to occur.' State v. Kennedy, 107 Wn.2d 1, 6, 726 P.2d 445 (1986). And the level of articulable suspicion required for a car stop is no greater than required for a pedestrian stop. Kennedy, 107 Wn.2d at 6 (citing Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979)).
Innocuous facts alone, without more, are insufficient to provide a basis for reasonable suspicion of criminal activity. Almanza-Guzman, 94 Wn. App. at 567-68. But actions equally consistent with criminal or non-criminal activity may justify a Terry stop. See Kennedy, 107 Wn.2d at 6.
Here, in April 2001, the CI provided police with very specific allegations of drug activity at the house Kemper was leaving. In the context of an investigative detention, `[a]n informant's tip cannot constitutionally provide police with [an articulable] suspicion unless it possesses sufficient `indicia of reliability.'' State v. Jones, 85 Wn. App. 797, 799, 934 P.2d 1224 (quoting Sieler, 95 Wn.2d at 47), review denied, 133 Wn.2d 1012 (1997). The informant's initial report was not considered `reliable' by the police but, when the CI later proved to have provided accurate information to other law enforcement agencies, the TNT resumed surveillance of the residence in May 2002. And in addition to the initial informant's tip about drug dealing occurring in the house, the officers' corroborating intermittent personal observations from April 2001 to May 2002 prompted the investigative detention of the Taurus as it left the house.
But Kemper contends that while the CI may have related accurate information about other vehicles, there were no reasonable grounds to connect this car to the alleged activities at the house. Kemper argues that police had never seen the Taurus before. But police suspicions towards the Taurus and its occupants were based on observations of the home and the pattern of vehicle activity at this reported drug transportation locale. Police had reliable information indicating that (1) the Taurus, registered to a Vancouver address, stopped for two hours at the house, which they had reason to believe was a holding place for marijuana shipments along the I-5 corridor (Finding No. 18); (2) while the Taurus was at the house, two other cars arrived and departed (Finding No. 17); (3) one of these cars was registered to a Shoreline resident with an Asian name (Finding No. 17); (4) Hernandez, a reported marijuana supplier, was seen at the residence only a month earlier and lived in or near Shoreline (Finding Nos. 13 and 15); and (5) the Taurus left shortly after the other two cars and headed south on Interstate 5 (Finding Nos. 18 and 19).
Many of these facts support the suspicion that the Taurus's occupants were connected to illegal drug activities reportedly occurring in that house. See Terry, 392 U.S. 1. Given the TNT's objective, articulated suspicions, and its year-long observations of the Biasi house, these facts were not innocuous and they supported a brief investigative detention of the Taurus. During this detention, Kemper, Bradley, and Dealy gave inconsistent accounts of their activities, which led to police use of a K-9 drug dog.
Canine Sniff of Vehicle
Kemper next contends that the canine sniff of the exterior of the Taurus during the stop was an illegal warrantless search. The State counters that the canine sniff of the exterior of the car and the officer's push on the trunk did not constitute a search.
The United States Supreme Court recently held that a canine sniff of the exterior of a defendant's vehicle conducted during a lawful traffic stop that reveals no information other than the location of a substance that no individual has the right to possess does not violate the Fourth Amendment. Illinois v. Caballes, U.S., 125 S. Ct. 834, 838, 160 L. Ed. 2d 842 (2005).
No published Washington cases have explicitly analyzed whether a canine sniff of the exterior of a car constitutes a search for purposes of article I, section 7. See David J. Perkins, Capsized by the Constitution: Can Washington State Ferries Meet Federal Screening Requirements and Still Pass State Constitutional Muster?, 79 Wash. L. Rev. 725, 738-39 (2004). Where, as here, coordinated law enforcement agencies are investigating interstate/international transport of contraband, arguably the Fourth Amendment controls analysis of the legality of the search.
In State v. Flores-Moreno, 72 Wn. App. 733, 866 P.2d 648, review denied, 124 Wn.2d 1009 (1994), we held that the police had probable cause to search a car after the drug-sniffing dog gave a positive reaction for drugs during a valid Terry stop. But there, we did not engage in an article I, section 7 analysis.
But under article I, section 7 of our state constitution, we must determine `whether the State unreasonably intruded into the defendant's `private affairs.'' Mendez, 137 Wn.2d at 219 (quoting State v. Myrick, 102 Wn.2d 506, 510, 688 P.2d 151 (1984)). `The analysis . . . focuses, not on a defendant's actual or subjective expectation of privacy but, as . . . previously established, on those privacy interests Washington citizens held in the past and are entitled to hold in the future.' Mendez, 137 Wn.2d at 219 (quoting State v. White, 135 Wn.2d 761, 768, 958 P.2d 982 (1998)). Thus article I, section 7 provides greater protection to the privacy of individuals in automobiles than the Fourth Amendment, and Caballes is not dispositive of the issue. See Mendez, 139 Wn.2d at 220.
Under article I, section 7, Washington courts have found canine sniffs of a defendant's home unduly intrusive. State v. Dearman, 92 Wn. App. 630, 635, 962 P.2d 850 (1998), review denied, 137 Wn.2d 1032 (1999). In State v. Wolohan, 23 Wn. App. 813, 598 P.2d 421 (1979), review denied, 93 Wn.2d 1008 (1980), we held that the canine sniff of a package sent via a common carrier, a Greyhound bus, was not a search under the Fourth Amendment because the intended recipient had no reasonable expectation of privacy in the bus station where the sniff occurred or in the area surrounding the package. Then, in State v. Boyce, 44 Wn. App. 724, 726, 723 P.2d 28 (1986), a defendant contended that the canine sniff of her safety deposit box without a warrant violated article I, section 7. Boyce, 44 Wn. App. at 728-30. Engaging in a Gunwall analysis and considering Wolohan, Division One concluded that the canine sniff was not a search under article I, section 7. The court noted that the officer had permission to be in the bank vault area; the defendant lacked control of the bank area where her safety deposit box was; and the intrusion involved in a canine sniff of the air outside a safety deposit box is minimal. Boyce, 44 Wn. App. at 730. Likewise, in State v. Stanphill, 53 Wn. App. 623, 630-31, 769 P.2d 861 (1989), a case involving a dog sniff of a package at the post office, Division Three held that the sniff did not violate article I, section 7.
In United States v. Place, 462 U.S. 696, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983), the United States Supreme Court held that a canine sniff of a traveler's luggage was not a search within the meaning of the Fourth Amendment. The sniff, the Court said, is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, . . . the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods.
462 U.S. at 707.
State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986).
Boyce controls our analysis here. In Boyce, the court stated that `[a]s long as the canine sniffs the object from an area where the defendant does not have a reasonable expectation of privacy, and the canine sniff itself is minimally intrusive, then no search has occurred.' 44 Wn. App. at 730. The officers had a right to make an investigatory stop of the Taurus based on their reasonable, articulable suspicion that it was part of a drug transportation operation and that it was being used to transport marijuana from a suspected storage site. The occupants' voluntary, yet inconsistent, stories supported the continued investigative detention and use of the canine drug unit. The inherent, minimally intrusive nature of the canine sniff of the outside of the vehicle was not altered by Trooper Slish having pushed on the trunk to circulate air. The trial court properly concluded that no search occurred until police served the search warrant and seized the marijuana from the Taurus's trunk. We affirm.
Here, the State also asserts that, even if the sniff was a search, the doctrine of `inevitable discovery' applies because the record shows that Trooper Slish pushed on the trunk for officer safety concerns; these concerns would have prompted Trooper Slish's trunk pushes even if desire to circulate air did not. The trial court's Finding No. 25 states `[t]he pushing on a . . . trunk lid is done to insure that a door or trunk is not spring-loaded and secreting someone who might set upon an officer.' CP at 56. Based on our review of the officer's testimony, the record does not clearly support this finding, but we do not address the State's inevitable discovery argument further.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, J. and HUNT, JJ., concur.