Opinion
Nos. 30845-2-II (consolidated with), 30849-5-II
Filed: August 3, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Thurston County. Docket No: 03-1-01186-3. Judgment or order under review. Date filed: 09/10/2003. Judge signing: Hon. Daniel J Berschauer.
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), James C. Powers, Thurston County Prosecuting Attorney Ofc, 2000 Lakeridge Dr SW, Olympia, WA 98502-6001.
A jury convicted Christopher Schnaidt and Christine Lugo in a joint trial for unlawful possession of methamphetamine with intent to deliver and unlawful manufacture of methamphetamine. They challenge the trial court's denial of their motion to suppress, arguing that (1) Schnaidt's arrest for third degree driving with a suspended license was unlawful because a later judicial opinion held a portion of chapter 46.20 RCW unconstitutional; and (2) the arresting officer did not have an articulable suspicion to perform an investigatory stop. Schnaidt and Lugo also argue that their counsel were ineffective, sufficient evidence does not support their convictions, and we should reduce their sentence enhancements. We affirm.
FACTS A. Arrest
On an early morning in June 2003, Tumwater Police Officer Clinton Armitage was on duty and waiting at a stop sign near a convenience store. RP (08/18/03) 7-8. Another vehicle slowly passed him while going through the intersection and into the store parking lot. RP (08/18/03) 7-8. Armitage was able to observe the passing car's driver and made eye contact. Armitage believed that the male driver `glared' at him. Report of Proceedings (August 18, 2003) at 8. He noticed a female in the passenger seat and obtained the vehicle's license number.
Using a computer in his patrol car, Armitage accessed the Department of Licensing (DOL) database and looked up the vehicle's license number. The DOL record stated that the vehicle's registered owner was a male named Christopher Schnaidt who had a third degree suspended license. The DOL record also indicated that Hope Warner was the registered owner of the vehicle.
While the vehicle was parked outside the store, Armitage drove closer to double check that he had entered the correct license number into the DOL database. After verifying the DOL record, he notified another officer that he was going to approach the driver briefly observed the passengers. When Armitage approached the vehicle, a male was in the driver's seat and a female passenger was holding a baby. Armitage asked the male for identification, which he did not provide, but he stated that his name was Christopher Schnaidt. Armitage then arrested him for driving with a third degree suspended license.
Armitage and another officer searched the vehicle incident to Schnaidt's arrest. They seized evidence relevant to the possession and manufacture of methamphetamine, including a straw with white residue from the dashboard, a box containing baggies of powder from under the driver's seat, smoking pipes, scales, butane torches, and an ice chest containing tubing and filters behind the driver's seat, a bottle of Heet, and several jars of liquid.
Heet is a product name.
Armitage arrested Lugo. Police later obtained a search warrant to more thoroughly search the vehicle. The baby was placed with Child Protective Services.
The appellants do not challenge this search warrant or the evidence obtained from it.
B. Procedural History
The State charged Schnaidt and Lugo with one count of methamphetamine possession with intent to deliver, one count of unlawful manufacture of methamphetamine, and one count of methamphetamine possession. The State alleged that both defendants committed the crime of unlawful manufacture of methamphetamine in the presence of a minor.
Schnaidt and Lugo moved to suppress the evidence from the search incident to arrest. In August 2003, the court held CrR 3.6 hearing. The relevant findings of fact were: (1) Schnaidt was driving the vehicle when it passed Armitage at the stop sign near the store, even though Schnaidt argued that Lugo was the driver and had later moved to the passenger seat to feed the baby; (2) Armitage's testimony that he observed Schnaidt as the driver was `entirely credible' (3) DOL records indicated that the vehicle's registered owner was a male named Schnaidt who had a suspended driver's license; (4) Armitage approached the vehicle, confirmed Schnaidt's identity, and arrested him for driving with a suspended license; (5) Armitage then searched the vehicle incident to the arrest. Clerk's Papers (CP) at 105.
The court's conclusions of law stated that `[o]nce Officer Armitage confirmed that Mr. Schnaidt's driving privilege had been suspended, he had probable cause to arrest him, as he had just seen him driving the vehicle down a public roadway.' CP at 106. The trial court ruled that the search of the vehicle search incident to arrest was legal and that the evidence was admissible.
Schnaidt and Lugo were tried together in August 2004. According to the Washington State Crime Laboratory, the evidence from Schnaidt's vehicle, such as the baggies of powder and coffee filters, tested positive for methamphetamine. The State's witnesses also testified that coffee filters and jars are commonly used to manufacture methamphetamine. The jury found both defendants guilty of unlawful possession of methamphetamine with intent to deliver and unlawful manufacture of methamphetamine, including a special verdict that a minor was present during the unlawful manufacture. Schnaidt and Lugo were sentenced within the standard range, including a 24-month sentence enhancement under former RCW 9.94A.605 (2002) and former RCW 9.94A.510(6) (2002) for unlawful manufacture in the presence of a minor.
The third count of unlawful possession of methamphetamine was not submitted to the jury.
Laws of 2002, ch. 134, sec. 3.
Laws of 2002, ch. 290, sec. 10.
ANALYSIS I. Motion to Suppress
We review factual findings in a motion to suppress for substantial evidence; we review de novo the suppression order's conclusions of law. State v. Duncan, 146 Wn.2d 166, 171, 43 P.3d 513 (2002); State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999). Substantial evidence in the criminal context here is evidence that "would convince an unprejudiced, thinking mind of the truth of the fact to which the evidence is directed." State v. Summers, 107 Wn. App. 373, 388, 28 P.3d 780 (2001) (citation omitted).
Schnaidt and Lugo contend that their arrest was unlawful because the Washington Supreme Court held that certain sections of chapter 46.20 RCW violated procedural due process. City of Redmond v. Moore, 151 Wn.2d 664, 668, 91 P.3d 875 (2004). They assert that `the rationale for [their] arrest[s] and search incident thereto is eliminated' because the arrest and subsequent search were unconstitutional; thus, the evidence obtained from the vehicle should be suppressed. Br of Appellant Schnaidt at 17.
The Supreme Court recently addressed whether subsequent invalidation of a portion of the license suspension statute renders prior arrests for driving with third degree suspended license unlawful under Washington Constitution article I, section 7, and therefore requiring suppression of evidence seized incident to arrest. State v. Pulfrey, No. 75301-6, 2005 WL 1176641 (Wash. May 19, 2005).
Addressing this issue in Pulfrey, the Supreme Court disagreed with the same assertions that Schnaidt and Lugo make here:
Pulfrey believes Moore renders void his arrest for driving while license suspended in the third degree. However, this result does not necessarily follow from our holding in Moore.
But we struck down only two sections of the broader driver's license chapter. Other sections were left untouched, and these sections provide a means for suspending a license. RCW 46.20.342(1)(c), the statute that defines driving while license suspended in the third degree, lists six different reasons for the suspension that render the offense a third degree violation, only one of which is now suspect because of Moore. Thus, for Pulfrey to benefit from our opinion in Moore, he must show that his license was suspended under the statutes declared unconstitutional.
The record in this case does not indicate why Pulfrey's license was suspended. He has not shown that his license was suspended under the unconstitutional statutes and therefore is not entitled to relief. Pulfrey was lawfully arrested, and thus the search incident to that arrest was also lawful.
Pulfrey, 2005 WL 1176641 at *1168.
Here, Schnaidt does not specify under which statutory section his license was suspended. And the record likewise does not reveal this information. Thus, Schnaidt and Lugo have not shown that Schnaidt's license was suspended under one of the unconstitutional provisions. Therefore, Schnaidt and Lugo's argument is unpersuasive and we do not address this issue further.
Schnaidt and Lugo's argument fails even under Moore. The Supreme Court's en banc decision in State v. Gaddy, 152 Wn.2d 64, 93 P.3d 872 (2004), decided one month after Moore, upheld a search incident to arrest for driving while license suspended in the third degree. The court held that (1) under the probable cause standard, the police were `required only to have knowledge of facts sufficient to cause a reasonable person to believe that an offense had been committed,' Gaddy, 152 Wn.2d at 70; and (2) the police could rely on DOL records in arresting Gaddy because such records are presumptively valid. Gaddy, 152 Wn.2d at 73-74. Here, the police could rely on the DOL records in arresting Schnaidt because the records were presumptively valid and his arrest occurred more than a year before the court's decision in Moore. The police reasonably relied on the statute and the DOL records and had probable cause for his arrest.
Schnaidt and Lugo also assert that Armitage unlawfully arrested them because he lacked a reasonable, articulable suspicion for an investigatory stop. They do not argue that their arrests lacked probable cause. But they fail to demonstrate that either Armitage's investigatory stop or their arrest was unlawful.
A warrantless, investigatory stop must be reasonable under the Fourth Amendment and article I, section 7 of the Washington Constitution. Duncan, 146 Wn.2d at 171. An investigatory stop is reasonable if the arresting officer can attest to specific and objective facts that provide a reasonable suspicion that the person stopped has committed or is about to commit a crime. State v. Armenta, 134 Wn.2d 1, 10, 948 P.2d 1280 (1997).
RCW 10.31.100(3)(e) provides that an officer may make a warrantless arrest when `[a]ny police officer having probable cause to believe that a person has committed or is committing a violation of any of the following traffic laws. . . . (e) RCW 46.20.342, relating to driving a motor vehicle while operator's license is suspended or revoked.'
RCW 46.20.349 provides:
Any police officer who has received notice of the suspension or revocation of a driver's license from the department of licensing, may, during the reported period of such suspension or revocation, stop any motor vehicle identified by its vehicle license number as being registered to the person whose driver's license has been suspended or revoked. The driver of such vehicle shall display his driver's license upon request of the police officer.
Thus, `[a] DOL report of suspension supports articulable suspicion of criminal conduct sufficient to justify a brief investigatory stop.' State v. Phillips, 126 Wn. App. 584, 587, 109 P.3d 470 (2005).
A police officer has probable cause to arrest a person for driving with a suspended license when relying on DOL information that indicates the person's license has been suspended and the officer has identified that person. State v. Gaddy, 152 Wn.2d 64, 70, 93 P.3d 872 (2004); State v. Marcum, 116 Wn. App. 526, 531, 66 P.3d 690 (2003).
Here, Armitage made eye contact with a male driver who drove past him on a public road; the officer received a DOL report that Schnaidt, a male, owned the vehicle. Armitage double checked the license number before approaching the vehicle and, after a brief questioning, Schnaidt revealed his identity. Thus, Armitage had probable cause to arrest Schnaidt for driving with a suspended license.
Schnaidt and Lugo complain that their brief eye contact with Armitage was an insufficient reason for the officer to look up their DOL information. But they do not have a protected privacy interest in DOL records. State v. McKinney, 148 Wn.2d 20, 32, 60 P.3d 46 (2002). Thus, an officer can randomly check a vehicle's DOL information without suspicious activity. See, e.g., McKinney, 148 Wn.2d at 24; Phillips, 126 Wn. App. at 586 (a `deputy conducted a random Department of Licensing (DOL) records check on the vehicle [defendant] was driving.').
Schnaidt and Lugo argue that the trial court erred in finding that Schnaidt was the driver, not Lugo. At the CrR 3.6 hearing, Schnaidt and Lugo testified that Armitage was incorrect in asserting that he observed a male driver at the stop sign. Schnaidt testified that he was in the driver's seat when Armitage approached him because Lugo had to feed the baby in the passenger side. But the trial court found Armitage's testimony to be more credible and we do not review credibility issues on appeal. See, e.g., State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). Further, Schnaidt and Lugo do not point to any additional evidence to contradict Armitage's testimony that Schnaidt was driving when he passed Armitage at the stop sign.
Finally, the appellants argue that Armitage cannot rely on the `good faith' exception to the exclusionary rule. But both Armitage's investigatory stop and subsequent arrest of Schnaidt and Lugo was lawful. It is well settled that if the arrest was valid, the subsequent search incident to arrest was valid and evidence obtained pursuant to that search is admissible. State v. Craig, 115 Wn. App. 191, 194-95, 61 P.3d 340 (2002). Thus, the exclusionary rule does not apply to the facts here. We hold that Schnaidt and Lugo have not shown that Armitage unlawfully stopped and arrested Schnaidt for driving while license suspended, unlawfully searched the vehicle incident to their arrest, or unlawfully seized the evidence of drug possession, intent to sell, and manufacture. The trial court did not err in refusing to suppress the evidence seized.
II. Effective Assistance of Counsel
Schnaidt and Lugo assert that their counsel were ineffective, resulting in prejudice affecting the trial outcome, by failing to argue in their motion to suppress (1) that RCW 46.20.289, .324(1), and .342 are unconstitutional; and (2) that Armitage failed to exercise his discretion by making an arrest, rather than issuing a citation.
A defendant demonstrates ineffective assistance of counsel by demonstrating that counsel's (1) representation fell below an objective and reasonable standard; and (2) errors were serious enough to deprive the defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); State v. Jeffries, 105 Wn.2d 398, 418, 717 P.2d 722 (1986). The defendant must `show deficient representation based on the record established in the proceedings below' and overcome the strong presumption of effective assistance of counsel. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). When considering a claim that counsel was ineffective, we consider all the circumstances of the defendant's case. McFarland, 127 Wn.2d at 334-35; State v. Soonalole, 99 Wn. App. 207, 215, 992 P.2d 541 (2000).
Here, the defendants' raise their first issue in the alternative, in the event we consider the constitutional issues of RCW 46.20.289, .324(1) as waived because they were not addressed below. But we have held that Schnaidt failed to indicate whether his license was suspended under any unconstitutional section of the applicable statute. Thus, his argument fails and we do not review this matter further.
Schnaidt and Lugo's next argument is unpersuasive because they fail to cite any persuasive evidence that Armitage routinely arrests individuals for suspended licenses instead of issuing citations. The defendants' counsel was not required to make an argument unsupported by the record.
Thus, Schnaidt and Lugo do not demonstrate that defense counsel was ineffective.
III. Sufficient Evidence
Schnaidt and Lugo argue that sufficient evidence does not support their convictions for possession of methamphetamine with intent to manufacture and for unlawful manufacture of methamphetamine.
Evidence is sufficient if, when viewed in the light most favorable to the State, a reasonable person would find that the State proved the essential elements of the crime beyond a reasonable doubt. State v. Tilton, 149 Wn.2d 775, 786, 72 P.3d 735 (2003). A defendant's evidentiary challenge admits the truth of the State's evidence and all inferences that can reasonably be drawn from it. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
Here, the State argued at trial that Lugo was Schnaidt's accomplice. The State demonstrated that Schnaidt and Lugo had a significant relationship that included having two children. The State proffered evidence obtained from the defendants' vehicle that demonstrated a considerable presence of methamphetamine and methamphetamine manufacturing equipment, including straws, 22 baggies of methamphetamine, extensive tubing, coffee filters, and jars of methamphetamine in liquid form. The State's evidence showed that approximately 8.3 grams of methamphetamine were in the vehicle at the time of their arrests.
Viewed in the light most favorable to the State, the extensive methamphetamine and manufacturing equipment, coupled with Schnaidt's and Lugo's close relationship, is sufficient evidence to support their convictions.
IV. Sentence Enhancement
Schnaidt and Lugo argue that State v. Blade requires that their 24-month sentence enhancements be reduced to 12 months. 126 Wn. App. 174, 107 P.3d 775 (2005).
But Blade's holding focused on a deadly weapon sentencing enhancement that is inapplicable here. 126 Wn. App. at 179, 181. The defendants' enhancements here were under former RCW 9.94A.605 and former RCW 9.94A.510(6) and were based on a special verdict finding that a minor was on the manufacturing premises. Further, unlike the erroneously imposed deadly weapon enhancement in Blade, the sentencing enhancements here did not double the maximum sentence for unlawful methamphetamine manufacture.
The defendants' argument regarding their 24-month sentence enhancements misinterpret both former RCW 9.94A.510(6)'s plain language and Blade's holding. Thus, their arguments are unpersuasive.
We affirm.
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.
BRIDGEWATER, P.J. and HUNT, J., concur.