Opinion
No. 50924-1-I
Filed: July 9, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County Docket No: 01-1-01785-8 Judgment or order under review Date filed: 08/09/2002
Counsel for Appellant(s), Oliver Ross Davis, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Counsel for Respondent(s), Mary Kathleen Webber, Snohomish County Prosecutors Office, Msc 504, 3000 Rockefeller Ave, Everett, WA 98201-4061.
Anthony Gonzales appeals his conviction for narcotics possession, arguing that the traffic stop during which the drugs were discovered was unconstitutionally pretextual. The trial court found that although Officer Jerry Rittgarn's initial suspicions were not based on a traffic violation, the stop was not a pretext to conduct an unrelated criminal investigation. Because the trial court's conclusions are supported by substantial evidence and it applied the correct standards in denying Gonzales' motion to suppress, we affirm.
FACTS
On August 29, 2001, Officer Rittgarn of the Lynnwood Police Department was on routine patrol in an unmarked police car when he entered the Medo-Lynn trailer park. Although Rittgarn's vehicle is "unmarked," it is clearly a police car, with lights mounted on the dashboard, front grill, and back window. He entered the trailer park through the only entrance, which also serves as the only exit. As an officer in the "special operations" unit, Rittgarn responds to calls in progress, backs up other officers, and enforces the traffic code. Upon entering the park, Rittgarn saw the defendant and several other people standing near a Camaro. As Rittgarn passed the group, Gonzales locked eyes with him and continued staring until Rittgarn was out of sight. Rittgarn continued his patrol through the trailer park drive, circling the area and winding back to the entrance/exit. As Rittgarn passed the Camaro, he noticed Gonzales was seated in the driver's seat. Although there was no indication of illegal activity, Rittgarn's suspicions were aroused. After he left the trailer park, Rittgarn turned around and re-entered to make another pass. As he drove back in, Gonzales was driving the Camaro out of the complex with two other occupants in the vehicle. Rittgarn says that as the two vehicles passed, Gonzales was shouting at him and motioning for him to follow. Gonzales claims he was talking to his friends in the car, not Rittgarn. Regardless of whether the statements were directed at Rittgarn or the other occupants of the Camaro, Gonzales said that the officer had nothing on him. Rittgarn could hear this statement because the windows of both vehicles were open. Gonzales' statements further piqued Rittgarn's interest, and he decided to follow the Camaro out of the trailer park. Gonzales turned out onto the main road, drove for about 100 yards, stopped in the middle of the road, and then pulled quickly over to the curb lane without signaling. Having witnessed a traffic infraction, Rittgarn pulled in behind the Camaro, got out of his vehicle, and approached Gonzales. Gonzales was moving around in the Camaro, yelling at Rittgarn, and making motions asking him to approach. Rittgarn went to the Camaro, explained the reason for the traffic stop and requested his license, registration, and proof of insurance. When he ran a license check, he discovered Gonzales' license was suspended, and he went to the car to make the arrest. Another officer had arrived as backup and assisted Rittgarn. Gonzales resisted arrest but was eventually subdued, handcuffed, and placed in the assisting officer's patrol car. When they searched Gonzales' Camaro incident to the arrest the officers found a canister containing several baggies of methamphetamine. He was charged with possession of a controlled substance with intent to deliver. Before trial, Gonzales moved to suppress the drug evidence on the basis that the traffic stop was pretextual. The trial court held a CrR 3.6 hearing and denied the motion to suppress, finding the traffic stop was not pretextual. Gonzales was convicted and sentenced to 78 months in prison. He now appeals.
Gonzales concedes knowing the car was a police vehicle.
DISCUSSION
Gonzales assigns error to the trial court's CrR 3.6 conclusion of law 2, arguing it is actually a finding of fact. We agree that conclusion of law 2 has elements of a factual finding, so Gonzales has adequately raised the pretext issue here. For the purposes of this appeal, we will treat conclusion of law 2 as a factual finding. Challenged findings of fact are affirmed if supported by substantial evidence, defined as evidence of a quantum sufficient to persuade a fair-minded person. It is well settled that pretextual traffic stops violate article I, section 7 of the Washington State Constitution because they are seizures absent the authority of law which a warrant would bring. When determining whether a traffic stop is pretextual, the court considers the totality of the circumstances, including both the subjective intent of the officer and the objective reasonableness of the officer's actions. In State v. Ladson, the court held that a police officer may not use traffic-enforcement authority as a pretext or justification to conduct an unrelated criminal investigation for which there is no probable cause to obtain a warrant. In Ladson, two police officers admitted that although they did not make routine traffic stops as part of their gang patrol duties, they did use traffic code violations as a means to initiate contact and question people about unrelated criminal activity. In fact, they followed people who aroused their suspicions, hoping to see a traffic infraction in order to have a legal reason to pull them over. The Ladson court held that any evidence found during this type of pretextual traffic stop was inadmissible.
This ensures the pretext issue is adequately raised since unchallenged findings of fact are verities on appeal. State v. Hill, 123 Wn.2d 641, 644-47, 870 P.2d 313 (1994).
State v. Horrace, 144 Wn.2d 386, 391-92, 28 P.3d 753 (2001).
Lawter v. Employment Sec. Dep't, 73 Wn. App. 327, 332, 869 P.2d 102, review denied, 124 Wn.2d 1019 (1994).
State v. Ladson, 138 Wn.2d 343, 358, 979 P.2d 833 (1999).
Id.
138 Wn.2d 343, 358, 979 P.2d 833 (1999).
Id. at 346.
Id.
In State v. DeSantiago, this court held that a police officer's subjective motive for stopping a vehicle may invalidate an otherwise objectively valid traffic stop. There, the officer was watching an apartment complex known to be a narcotics hot spot. The officer saw DeSantiago drive up, enter an apartment, and then leave a few minutes later. Suspecting drug activity, the officer followed DeSantiago for several blocks, "looking for a basis to stop the vehicle." When DeSantiago made an illegal turn, the officer pulled him over, discovered that DeSantiago had a suspended license and a misdemeanor warrant, and arrested him. During the search incident to the arrest, the officer found drugs and a handgun. In reversing DeSantiago's firearm and drug convictions, this court held:
97 Wn. App. 446, 451-53, 983 P.2d 1173 (1999).
State v. DeSantiago, 97 Wn. App. 446, 452, 983 P.2d 1173 (1999).
Officer Miller was not on routine traffic patrol here. He was watching a "narcotics hot spot" and saw what he came to see — someone apparently buying drugs. He then followed up on that suspicion. [He] was clearly "looking for a basis to stop the vehicle" and subjectively intended to engage in a pretextual stop. . . .
Id. at 452-53.
Gonzales argues that his case is similar to the facts in Ladson and DeSantiago. We disagree. The officers in Ladson admitted to regularly using their traffic-enforcement authority as a way to facilitate their gang- patrol duties. But here, traffic enforcement is part of Rittgarn's normal duties. Furthermore, unlike the officer in DeSantiago, Rittgarn was on normal patrol. He was not staking out a suspected drug hot spot, hoping to make an arrest, nor was he following up on a specific suspicion. Gonzales also asserts the traffic stop was pretextual because Rittgarn's initial decisions, first to re-enter the trailer park, then to begin following the Camaro, were unrelated to traffic enforcement. However, in determining whether a traffic stop is pretextual, the officer's subjective motivation for the initial decision to follow a vehicle is not the focus of the inquiry. The decisive factor is the officer's subjective motivation for making the traffic stop itself. We recently focused on State v. Hoang, where we held that "even patrol officers whose suspicions have been aroused may still enforce the traffic code, so long as enforcement of the traffic code is the actual reason for the stop." In Hoang, the officer was parked in a vicinity known for high narcotics activity. He saw Hoang's car pull up to a group of people on the street, converse briefly with them, then pull slowly toward another group of individuals. The officer admittedly suspected that a drug deal was in progress. When Hoang pulled away, the officer saw him make a left-hand turn without signaling and pulled him over. The officer then learned that Hoang's license had been suspended and arrested him. During a search incident to the arrest, the officer found cocaine in the vehicle, and Hoang was charged with possession. Affirming the trial court's conclusion that Hoang's traffic stop was not pretextual, this court noted that "upon making the stop, the officer asked only the questions that would be asked on a routine traffic stop: Do you have a driver's license? May I see the vehicle registration? . . . He asked no questions regarding what Hoang was doing in that area at that time of morning." Despite the officer's suspicion of drug activity, he did not conduct a criminal investigation unrelated to the traffic infraction.
Ladson, 138 Wn.2d 343; DeSantiago, 97 Wn. App. 446.
Rittgarn's testimony at the CrR 3.6 hearing and the trial court's findings of fact both support the fact that his initial suspicions were unrelated to traffic enforcement.
State v. Hoang, 101 Wn. App. 732, 742, 6 P.3d 602 (2000), review denied, 142 Wn.2d 1027 (2001).
Id. at 741.
The same is true here. The trial court's finding was that Rittgarn's "contact with the defendant was limited to that necessary to process the traffic infraction. Rittgarn did not ask any questions beyond the scope of the infraction investigation." So, while Rittgarn's suspicions may have initially been aroused by Gonzales' strange behavior, the traffic stop was not a pretext for conducting an unrelated criminal investigation.
In sum, substantial evidence supports the trial court's finding that the stop here was not pretextual. In making this determination, the trial court applied the standard enunciated in Ladson, considering the totality of the circumstances, including Rittgarn's subjective intent and the objective reasonableness of the officer's behavior. The trial court did not err in denying the motion to suppress evidence. We therefore affirm. For the Court:
ELLINGTON and KENNEDY, JJ., concur.