Opinion
No. 30684-1-II
Filed: December 14, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 03-1-01003-2. Judgment or order under review. Date filed: 07/15/2003. Judge signing: Hon. Ronald E Culpepper.
Counsel for Appellant(s), Alton B II McFadden, Olsen Olsen, 216 Ericksen Ave NE, Bainbridge Island, WA 98110-2820.
Counsel for Respondent(s), Miry Kim, Pierce Co Pros Attorney, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2171.
Corey Alan Collins appeals his conviction for one count of unlawful possession of a controlled substance methamphetamine, arguing that the trial court erred in denying his CrR 3.6 motion to suppress the methamphetamine. We affirm.
On March 2, 2003, at approximately 4:00 a.m., Deputy Mark Rickerson and Deputy Lind of the Pierce County Sheriff's Department were traveling northbound on Lorraine Street in Tacoma, Washington. Deputy Rickerson was driving a marked police vehicle that was certified to pace vehicles. As Deputy Rickerson turned onto 88th Street, he observed Collins driving above the posted speed limit of 25 m.p.h. Deputy Rickerson testified that he had no formal training in estimating speed but that Collins appeared to be traveling faster than the posted speed limit. As Collins approached 86th Street, Deputy Rickerson began traveling at around 50-55 m.p.h. in order to catch up with him. Collins was approximately 75 yards ahead of the deputies. When Deputy Rickerson was 100 feet behind Collins, he was able to pace him for approximately a quarter of a mile. Collins was traveling at 50 m.p.h. Deputy Rickerson testified that the area in which they were driving was mostly residential.
Collins turned right onto 86th Street and appeared to take the corner at a `high speed.' Report of Proceedings (RP) at 13. As Deputy Rickerson turned onto 86th Street, he activated his emergency lights. Collins looked over his right shoulder and continued driving. Collins turned northbound onto 33rd Avenue, a narrow, residential street. Deputy Rickerson testified that there were vehicles parked on either side of the roadway but there was room to pull over. Deputy Rickerson believed that Collins was traveling at 45-50 m.p.h. down 33rd Avenue. Deputy Rickerson then activated his sirens. Collins drove an additional 75 yards before he `nose-dived' into the edge of a driveway. RP at 15. As Collins entered the driveway, the right side of the vehicle made a `jarring motion,' as if Collins had driven up over the curb. RP at 33. Deputy Rickerson testified that he considered Collins to have been driving recklessly through a residential neighborhood and that he could have arrested him for reckless driving.
Deputy Rickerson conducted a felony stop and called for priority back up. He testified that he confronted Collins and his passenger at gun point because Collins had attempted to elude a police officer, which is a felony crime. Collins informed Deputy Rickerson that he had not stopped the vehicle because he was afraid that if he stopped, the vehicle would be towed. Collins believed that the vehicle would be towed because he was driving without a valid driver's license. Deputy Rickerson then conducted a search incident to Collins' arrest and found several baggies of white powder that later testified positive for methamphetamine. Deputy Rickerson asked Collins if he had used methamphetamine, and Collins stated that he had used `20' a `bit ago.' RP at 37.
On cross-examination, Deputy Rickerson testified that he was 100 yards behind Collins when Collins turned onto 34th Avenue from 88th Street. He further testified that the distance from 88th Street and 34th Avenue to 86th Street was approximately 75 yards. Collins was approximately two-thirds of the way down 34th Avenue when Deputy Rickerson caught up with him and was able to pace him. As he followed Collins, Deputy Rickerson was traveling at 55 m.p.h. down 34th Avenue toward 86th Street. Deputy Rickerson testified that he was not certain of the exact speeds at which he paced Collins, but he knew that Collins was traveling above the speed limit. Deputy Rickerson also testified that Collins was traveling at approximately 25-30 m.p.h. when he rounded each corner. He did not recall any people or vehicles out on the streets.
Collins testified that he did not see or hear Deputy Rickerson's lights and sirens until he was on 33rd Avenue. He further testified that the lights and sirens came on simultaneously and that he stopped within 75 yards of Deputy Rickerson's signal to stop. He stated that he did not stop immediately because he wanted to avoid having the vehicle towed.
The State charged Collins with one count of unlawful possession of a controlled substance. The parties appeared for a CrR 3.6 hearing, and Collins moved to suppress the methamphetamine found in his vehicle. He argued that Deputy Rickerson did not have probable cause for his arrest and had improperly searched his vehicle. The court denied Collins' motion, finding that probable cause existed to arrest Collins for both eluding a police vehicle and reckless driving. A stipulated facts bench trial was held and the court found Collins guilty as charged. Collins has timely appealed.
Collins contends that Deputy Rickerson lacked probable cause to arrest him for either eluding a police vehicle or reckless driving and, consequently, the court erred in denying his motion to suppress the methamphetamine found in his vehicle in a search incident to his arrest. Specifically, he challenges the trial court's findings of fact 2, 3, 4, 5, 6, 7, 8, and 10 and conclusions of law 2, 3, and 4.
Finding of fact 2 states:
At about 4:20 a.m., while on patrol, Deputy Rickerson observed a vehicle traveling westbound in the 3200 block of 88th Street S. The patrol vehicle was stopped at the stop sign to turn westbound on 88th Street S when Deputy Rickerson noticed that the vehicle appeared to be going faster than the posted speed limit, which is twenty-five miles per hour. Clerk's Papers (CP) at 6-7.
Finding of fact 3 states:
Deputy Rickerson turned onto 88th Street S behind the speeding vehicle in an attempt to catch up to the vehicle and initiate a traffic stop for speeding.
CP at 7.
Finding of fact 4 states:
Deputy Rickerson observed the vehicle turn northbound on 34th Avenue and it appeared to accelerate. Deputy Rickerson pursued the vehicle on 34th Avenue and was about seventy-five to eighty yards behind the vehicle and he paced and visually estimated the vehicle to be traveling at about forty-five to fifty miles per hour at this point.
CP at 7.
Finding of fact 5 states:
Deputy Rickerson activated his emergency lights and the vehicle continued without slowing down. Deputy Rickerson observed the vehicle turn eastbound on 86th Street S and at this point observed the driver look back over his shoulder.
CP at 7.
Finding of fact 6 states:
Deputy Rickerson observed the vehicle turn northbound onto 33rd Avenue S as it continued to acclerate [sic]. 33rd Avenue S is a residential neighborhood with narrow residential streets. Some vehicles were parked alongside the roadway. Deputy Rickerson estimated that the vehicle's speed remained at forty-five to fifty miles per hour. Deputy Rickerson followed the vehicle with his emergency lights still activated. Deputy Rickerson then activated his sirens.
CP at 7.
Finding of fact 7 states:
The vehicle turned eastbound onto 85th Street S. The vehicle traveled about seventy-five more yards and then jumped the sidewalk curb and came to a stop at an angle in front of a residence. Deputy Rickerson believed that the speed of the vehicle in a residential neighborhood was dangerous and reckless. The vehicle was a threat to safety of persons and property.
CP at 7.
Finding of fact 8 states:
The initial purpose for the stop was for speeding, but after failing to pull over as indicated by the emergency lights and sirens, the stop turned into a felony stop for eluding a pursuing police vehicle.
CP at 7-8.
Finding of fact 10 states:
Defendant was placed under arrest, handcuffed, and placed in the back of the patrol vehicle. Deputy Rickerson had probable cause to arrest the Defendant for eluding a pursuing police vehicle and for reckless driving.
CP at 8.
Conclusion of law 2 states:
Law enforcement officers may lawfully stop drivers of vehicles that commit infractions in their presence. Deputy Rickerson attempted to pull the defendant over for speeding, but the defendant failed to pull over as requested.
CP at 9.
Conclusion of law 3 states:
Law enforcement officers may arrest a person if they have probable cause to believe that the person is involved in criminal activity. Deputy Rickerson had probable cause to arrest the defendant for eluding a pursuing police vehicle and reckless driving. Thus, the arrest of the defendant was lawful.
CP at 9.
Conclusion of law 4 states:
Because the arrest of the defendant was based on probable cause, the defendant has failed to show that the methamphetamine, discovered during a search of the vehicle incident to arrest, was the fruit of an unlawful search. The motion to suppress is denied.
CP at 9.
When reviewing a denial of a motion to suppress, we determine whether substantial evidence supports a trial court's challenged findings of fact and, in turn, whether they support its conclusions of law. State v. Dempsey, 88 Wn. App. 918, 921, 947 P.2d 265 (1997). Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the truth of the finding. State v. Madarash, 116 Wn. App. 500, 509, 66 P.3d 682 (2003). We defer to the trier of fact regarding a witness' credibility or conflicting testimony. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). We treat unchallenged findings of fact as verities on appeal. Madarash, 116 Wn. App. at 509. Finally, we review challenges to a trial court's conclusions of law de novo. Madarash, 116 Wn. App. at 509.
Probable cause to arrest exists when facts and circumstances within the arresting officer's knowledge are sufficient to warrant a person of reasonable caution to believe that the defendant has committed an offense. State v. Terrovona, 105 Wn.2d 632, 643, 716 P.2d 295 (1986). Courts look to the totality of the circumstances and determine whether all of the facts, taken together and in light of the officer's experience and knowledge, are sufficient to establish probable cause. State v. Fore, 56 Wn. App. 339, 343, 783 P.2d 626 (1989), review denied, 114 Wn.2d 1011 (1990).
I. Attempting to Elude a Pursuing Police Vehicle A. Willful failure or refusal to immediately bring the vehicle to a stop
Collins first contends that Deputy Rickerson did not have probable cause to arrest him for attempting to elude a pursuing police vehicle pursuant to RCW 46.61.024. We disagree.
RCW 46.61.024 provides in relevant part:
(1) Any driver of a motor vehicle who willfully fails or refuses to immediately bring his vehicle to a stop and who drives his vehicle in a reckless manner while attempting to elude a pursuing police vehicle, after being given a visual or audible signal to bring the vehicle to a stop, shall be guilty of a class C felony. The signal given by the police officer may be by hand, voice, emergency light, or siren. The officer giving such a signal shall be in uniform and the vehicle shall be equipped with lights and sirens.
Collins concedes that Deputy Rickerson was driving a marked police vehicle and that Deputy Rickerson signaled for him to stop. Thus, the only issues before this court are whether Collins willfully failed to immediately bring his vehicle to a stop and whether he was driving in a reckless manner. Collins argues that he came to a stop within 75 yards, or two blocks, after Deputy Rickerson activated his sirens and 75 yards is not a `long distance indicating a refusal, but rather someone slowing from 25 to 30 mph and looking for a place to pull over.' Br. of Appellant at 14. Additionally, Collins argues that he did not willfully fail to stop because the evidence does not support a finding that he knew that Deputy Rickerson had activated his emergency lights. Finally, he argues that he chose to pull over in the driveway rather than on 33rd Avenue to avoid being towed and to pull his vehicle out of the flow of traffic. These arguments fail on several grounds.
The `reckless' element of eluding a police vehicle and the crime of reckless driving are discussed together under section II because the elements are the same. See State v. Tandecki, 120 Wn. App. 303, 309, 84 P.3d 1262 (2004).
Deputy Rickerson testified that as he followed Collins onto 86th Street, he activated his emergency lights. Collins looked over his right shoulder but did not bring his vehicle to an immediate stop. Collins continued driving and turned onto 33rd Avenue, traveling at estimated speeds of 45-50 m.p.h. down 33rd. Deputy Rickerson further testified that there were many places for Collins to pull over on 33rd Avenue and that there were no other vehicles on the streets. This evidence, alone, supports a finding that Collins willfully refused to bring his vehicle to an immediate stop and that he was attempting to elude Deputy Rickerson's pursuing police vehicle. Furthermore, Collins continued to drive for an additional 75 yards even after Deputy Rickerson activated his sirens. Collins admitted to Deputy Rickerson that he chose not to stop because he was afraid his vehicle would be towed as he did not have a valid license. And although Collins testified at trial that he did not see or hear Deputy Rickerson's lights and sirens until he was on 33rd Avenue and that he stopped within 75 yards of Deputy Rickerson's signal to stop, we defer to the trier of fact regarding issues of credibility and conflicting testimony. See Camarillo, 115 Wn.2d at 71. In conclusion, this evidence overwhelmingly supports findings of fact 5, 6, and 8.
II. Reckless Driving
Collins next contends that Deputy Rickerson did not have probable cause to arrest him for driving in a reckless manner while attempting to elude a police vehicle or for the crime of reckless driving. Under RCW 46.61.500(1), any person who drives any vehicle in `willful or wanton disregard for the safety of persons or property' is guilty of reckless driving. The unlawful operation of a motor vehicle in excess of the maximum lawful speed is prima facie evidence of reckless operation of a motor vehicle. RCW 46.61.465.
Collins contends that Deputy Rickerson's direct testimony does not support a finding of probable cause to arrest him for reckless driving because it conflicted with his testimony on cross-examination. He argues that Deputy Rickerson testified on cross-examination that he was 100 yards behind Collins when Collins turned onto 34th Avenue from 88th Street and that the distance from 88th Street and 34th Avenue to 86th Street is approximately 75 yards. Deputy Rickerson also testified that Collins was about two-thirds of the way down 34th Avenue. Therefore, Collins asserts, Deputy Rickerson could not have paced Collins for a quarter mile down 34th Avenue as he testified on direct. Additionally, Collins argues that on direct examination, Deputy Rickerson testified that the speed limit on the residential streets was 25 m.p.h., but on cross-examination he testified that the speed limit was `25 to 30.' RP at 22. In short, Collins argues that Deputy Rickerson was not a credible witness. As previously noted, this determination is not reviewable. Furthermore, it is irrelevant whether the speed limit on the residential streets was 25 or 30 m.p.h. because Deputy Rickerson testified that Collins was traveling well above 30 m.p.h.
Collins also asserts that the court's finding that he was speeding is not supported by substantial evidence. He argues the following: (1) Deputy Rickerson could not recall the exact speeds at which he paced Collins and, thus, he likely assumed that Collins was speeding based on his initial impression that Collins was traveling above the speed limit on 88th Street; (2) Deputy Rickerson estimated that Collins negotiated the turns onto 34th and 33rd Avenue at approximately 25-30 m.p.h. and Deputy Rickerson stopped Collins only 75 yards down 33rd Avenue; (3) Deputy Rickerson has had no formal training in estimating speed or pacing; and (4) on cross-examination Deputy Rickerson admitted that he was attempting to pace Collins while accelerating to catch him, which, according to Collins, would invalidate the pace as an accurate means of determining Collins' speed. These arguments are without merit.
Deputy Rickerson testified that he initially observed Collins traveling on 88th Street, traveling above the posted speed limit of 25 m.p.h. He followed Collins, and as Collins approached 86th Street, Deputy Rickerson had to travel at speeds of 50-55 m.p.h. in order to catch up with him. When Deputy Rickerson caught up with Collins, he paced him and believes that Collins was traveling at around 50 m.p.h. Collins then turned right onto 33rd Avenue, a narrow, residential street, driving at an estimated speed of 45-50 m.p.h., until he drove over a sidewalk curb and came to a stop in a driveway. It is immaterial that Deputy Rickerson does not recall the exact speeds at which he paced Collins; it was reasonable for the trial court to rely on his estimations of speed and his testimony that Collins was traveling well above the posted speed limit. Further, Deputy Rickerson testified that, although he did not have formal training in pacing or estimating speed, he had knowledge of these techniques based on personal experience. In light of the fact that we consider the totality of the circumstances, including an officer's experience and knowledge, in determining the existence of probable cause, substantial evidence clearly supports a finding that Collins was traveling in excess of the legal speed limit. See Fore, 56 Wn. App. at 343.
Finally, Collins argues that he was not driving with `wanton disregard for the safety of persons or property' because there were no people or vehicles out on the streets during the incident and, although Deputy Rickerson testified that 33rd was a narrow street, he also testified that he and Collins easily traveled at 45-50 m.p.h. down 33rd. Br. of Appellant at 18. In essence, he contends that since there was no risk posed to others by his driving, there is no basis from which to infer the necessary mental state. But it is not necessary to show that other persons or property were put at risk in order to sustain a conviction for reckless driving. See State v. Amurri, 51 Wn. App. 262, 267, 753 P.2d 540 (1988). Thus, the evidence establishes a prima facie case of reckless driving and an inference of the mental state of willful or wanton disregard, which Collins has failed to rebut. The trial court did not err in determining that Deputy Rickerson had probable cause to arrest Collins for either eluding a pursuing police vehicle or reckless driving. In conclusion, substantial evidence supports findings of fact 2, 3, 4, 6, 7, and 10. In turn, these findings support the court's conclusions that Collins was speeding and consequently, Deputy Rickerson had probable cause to arrest Collins and was permitted to search his vehicle incident to arrest.
Affirmed.
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.
VAN DEREN, J., and QUINN-BRINTNALL, C.J., Concur.