Opinion
No. 51991-3-I
Filed: November 22, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Whatcom County. Docket No: 02-1-00248-2. Judgment or order under review. Date filed: 03/05/2003. Judge signing: Hon. Steven J Mura.
Counsel for Appellant(s), Starck M. Follis, Attorney at Law, 412 N Commercial St, PO Box 5846, Bellingham, WA 98227-5846.
Vrieling — Informational only (Appearing Pro Se), 6153 Portal Way, Ferndale, WA 98248.
Counsel for Respondent(s), Philip James Buri, Buri Funston PLLC, 1601 F Street, Bellingham, WA 98225-3011.
After a state trooper stopped Timothy Alan Vrieling for having defective turn signals, he learned that Vrieling was driving without insurance and detained him while writing a citation. The trooper observed that Vrieling's pupils were constricted and that he seemed excessively nervous and fidgety. Contemporaneous to issuing the citation, the trooper called for backup. The backup trooper obtained Vrieling's consent to search under the driver's seat of Vrieling's car, where he found a fuse box. The state trooper opened the fuse box and discovered that it contained heroin. Vrieling appeals the trial court's denial of his motion to suppress the fuse box as evidence obtained in an unreasonable search and without consent.
FACTS
On February 19, 2002, State Patrol Trooper Chad Bosman and his cadet-trainee observed a vehicle with defective signals exit the Interstate 5 northbound ramp near Ferndale. Trooper Bosman pulled the vehicle over. Upon approaching the driver, Timothy Vrieling, Trooper Bosman observed that Vrieling seemed excessively nervous and defensive, and was `making a lot of like quick movements.' Trooper Bosman asked Vrieling if he was on any medications, to which Vrieling responded very quickly. Next Trooper Bosman asked if he was taking any type of narcotics or had anything in the vehicle. Vrieling immediately said that he does not do drugs. Although Trooper Bosman noticed nothing unusual about Vrieling's breathing or speech, he did observe that Vrieling's eyes `seemed more constricted than they should.' Based on Vrieling's nervousness and constricted pupils, Trooper Bosman conducted some field sobriety tests on Vrieling. Vrieling passed the tests.
Trooper Bosman also ran a check on Vrieling's driver's license, and learned that Vrieling had no insurance. Trooper Bosman called for backup as his cadet-trainee began writing Vrieling's citation for having no insurance. State Patrol Trooper Gregory Laughlin arrived within three minutes, before Vrieling's citation was written. Trooper Laughlin confirmed Trooper Bosman's observations that Vrieling was excessively nervous and his pupils constricted. He testified, `it's obvious that the reactions that he was giving or that I was picking up from him were not consistent with the vast majority of traffic stops that I have made.' Trooper Laughlin also testified that, when he asked Vrieling for permission to search for weapons or narcotics under the front seat, Vrieling initially stated that he did not have any weapons or narcotics that he knew of. Upon Trooper Laughlin's second request to search under the seat, Vrieling consented. Trooper Laughlin did not read Vrieling his Miranda warnings before he began the search. Trooper Laughlin did not get a written consent from Vrieling. Trooper Laughlin testified:
I see a fuse box underneath his seat, the driver's seat. I pick that up. It's got a clear cover on it but the cover is dirty. I open the cover, see a little package that's consistent with how heroin's packaged in cellophane. I smell it and immediately detect the odor of heroin based on my training and experience.
Trooper Laughlin also testified that there was nothing about the fuse box in itself to suggest to him that it contained narcotics. After Trooper Laughlin found the heroin in the fuse box, Trooper Bosman gave Vrieling his citation for driving without insurance. Vrieling was arrested and charged with unlawful possession of a controlled substance.
At trial, Vrieling filed a motion to suppress evidence, asserting that the heroin was found after a warrantless search, and did not fall within any of the recognized exceptions to the warrant requirement. The trial court concluded that `the length of the stop did not exceed the time required to issue the citation, [so] the scope of the stop was not exceeded and the motion to suppress is denied.' The trial court also concluded that because Vrieling placed no limitation on Trooper Laughlin's search, Trooper Laughlin was authorized to look into the fuse box. Vrieling appeals the trial court's denial of his motion to suppress evidence.
ANALYSIS I. Standard of Review
Conclusions of law supporting a suppression ruling are reviewed de novo. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999).
II. Search
Vrieling asserts that the trial court erred in finding that his detention was reasonable.
`Whenever any person is stopped for a traffic infraction, the officer may detain that person for a reasonable period of time necessary to identify the person, check for outstanding warrants, check the status of the person's license, insurance identification card, and the vehicle's registration, and complete and issue a notice of traffic infraction.' RCW 46.61.021(2). Without sufficient justification, police officers may not use routine traffic stops as a basis for generalized, investigative detentions or searches. State v. Henry, 80 Wn. App. 544, 553, 910 P.2d 1290 (1995). The reasonableness of a stop is judged by the purpose of the stop, the amount of physical intrusion, and the length of the detention. State v. Williams, 102 Wn.2d 733, 739-40, 689 P.2d 1065 (1984). If a seizure is unlawful, the result of a consequent search is inadmissible. State v. Kennedy, 107 Wn.2d 1, 4, 726 P.2d 445 (1986). A consent to search may be tainted by illegal detention. State v. Tijerina, 61 Wn. App. 626, 630, 811 P.2d 241 (1991).
Vrieling contends that Henry, is analogous. In Henry, the court found a search following a traffic stop was impermissible. Henry, 80 Wn. App. at 552-53.
Henry is distinguishable. Henry had glassy eyes, moved slowly and acted like he was in some type of daze. Henry, 80 Wn. App. at 546. The officer spotted a police scanner in the front of Henry's vehicle and began questioning him about burglaries and drug transactions. Henry, 80 Wn. App. at 546. Henry was asked to consent to a search and told he could refuse. Henry, 80 Wn. App. at 546. The officer testified that after Henry consented and exited his vehicle, Henry became very nervous and anxious. Henry, 80 Wn. App. at 546-47. The officer called for backup. Henry, 80 Wn. App. at 546-47. The officers testified at trial that they searched the vehicle because they became concerned for their safety. Henry, 80 Wn. App. at 547. They were unable to articulate grounds for suspecting the defendant unlawfully possessed illicit drugs. Henry, 80 Wn. App. at 546-48. The record did not indicate whether the officers ever issued the traffic citations. Henry, 80 Wn. App. at 551. Here, in contrast, the troopers were able to articulate grounds for suspecting the defendant possessed illicit drugs. One of the troopers had received advanced training in narcotics. Both troopers observed that Vrieling was excessively nervous and his pupils constricted. Vrieling's conduct appeared unusual to the troopers. They conducted a search within the time it took to issue Vrieling a citation.
Vrieling also maintains that under Tijerina, the trial court erred in concluding that the search was reasonable. Tijerina, is also distinguishable. In Tijerina, state patrol officers stopped a car for a traffic violation. Tijerina, 61 Wn. App. at 626-28. Although the troopers decided not to issue a citation, they nonetheless continued to detain the car, questioning its occupants about weapons and drugs, and then requesting and receiving permission to search the car. Tijerina, 61 Wn. App. at 628. The court held that after deciding not to issue a citation, further detention `had to be based on articulable facts from which [the trooper] could reasonably suspect criminal activity.' Tijerna, 61 Wn. App. at 629. Finding that there was no reasonable suspicion of criminal activity, and further detention was improper, therefore any evidence subsequently obtained was tainted. Tijerina, 61 Wn. App. at 629.
Here, Trooper Bosman determined that a citation was warranted once he learned that Vrieling did not have insurance. Trooper Bosman testified that it took his cadet-trainee approximately three to four minutes to complete Vrieling's citation. Trooper Laughlin requested and received permission to search Vrieling's car while the cadet-trainee was writing the citation. Trooper Bosman did not give Vrieling his citation until Trooper Laughlin had opened the fuse box and found the heroin. The traffic-related purpose of the stop was not yet completed at the time Trooper Laughlin asked for permission to search and found the heroin.
Because Trooper Laughlin found the heroin prior to the completion of Vrieling's citation, the length of his detention was not excessive or unreasonable. Further, Trooper Bosman and Trooper Laughlin both articulated reasons to suspect that Vrieling may have been under the influence of drugs. The trial court did not err in finding that the stop and search was reasonable.
III. Scope of Consent
Vrieling asserts that the trial court erred in finding that Trooper Laughlin did not exceed the scope of consent when he opened the fuse box.
`When law enforcement officers are relying on consent as a basis to conduct a warrantless search or effect a warrantless seizure, they have only the authority that has been granted to them by the consent.' State v. Cotten, 75 Wn. App. 669, 679, 879 P.2d 971 (1994) (citing 3 Wayne R. LaFave, Search and Seizure sec. 8.1(c), 160 (2d. ed. 1987)). `Whether a consent to a search is voluntary is a question of fact to be determined from the totality of the circumstances.' State v. Armenta, 134 Wn.2d 1, 18, 948 P.2d 1280 (1997) (Talmadge, J., dissenting) (citing State v. Shoemaker, 85 Wn.2d 207, 211-12, 533 P.2d 123 (1975)). A consensual search is valid if the consent is voluntary, consent is granted, and the search does not exceed the scope of consent. State v. Mueller, 63 Wn. App. 720, 721-22, 821 P.2d 1267 (1992). `Exceeding the scope of consent is equivalent to exceeding the scope of a search warrant.' Cotten, 75 Wn. App. at 680.
Based on Vrieling's fidgeting and his constricted pupils, Trooper Laughlin formed a reasonable suspicion that Vrieling might be on illegal drugs. He requested permission to search under the driver's seat of Vrieling's car for weapons and narcotics, and Vrieling granted him permission to do so. Trooper Laughlin found the fuse box under the driver's seat of Vrieling's car. It was not unreasonable to suspect that drugs could have been contained in the fuse box. When Trooper Laughlin opened the fuse box, he detected the smell of heroin. The trial court determined that the purpose of the search was to look for weapons and narcotics. Vrieling neither expressly nor impliedly limited the scope of Trooper Laughlin's search. Accordingly, the trial court did not err in concluding that Trooper Laughlin did not exceed the scope of the search when he opened the fuse box.
Affirmed.
APPELWICK, J., SCHINDLER, J. and COLEMAN, J.