Opinion
No. 25836-0-III.
May 15, 2008.
Appeal from a judgment of the Superior Court for Grant County, No. 06-1-00246-9, Kenneth L. Jorgensen, J., entered December 19, 2006.
Affirmed in part and reversed in part by unpublished opinion per Kulik, A.C.J., concurred in by Brown and Korsmo, JJ.
Jeremy McCurdy appeals his convictions for possession of methamphetamine, use of drug paraphernalia, and third degree driving while license suspended. Mr. McCurdy contends the traffic stop that ultimately resulted in the search of his vehicle and the discovery of the drug paraphernalia was the result of a pretextual stop. The parties do not challenge the findings of fact. We review whether the findings support the trial court's conclusion that the stop was not pretextual. We reverse the conviction for third degree driving while license suspended and affirm the convictions for possession of methamphetamine and use of drug paraphernalia.
FACTS
On the morning of April 21, 2006, at 3:35 am, Ephrata Police Officer Patrick Canady was on patrol in Ephrata when he observed a car being driven by Jeremy McCurdy stopped at a stop sign. Officer Canady testified that he recognized Mr. McCurdy from prior contacts and arrests. The officer began following Mr. McCurdy because he suspected that Mr. McCurdy was driving with a suspended license. Officer Canady attempted to obtain Mr. McCurdy's licensing information from dispatch, but before he was able to do so, Mr. McCurdy pulled over and committed a traffic infraction by parking on the wrong side of the street. Officer Canady also observed that Mr. McCurdy's license tabs were expired.
As Mr. McCurdy was getting out of his car, Officer Canady flashed his lights and approached Mr. McCurdy. The officer asked Mr. McCurdy to have a seat in the car and to provide his license, registration, and proof of insurance. Mr. McCurdy was unable to produce any of the requested items. Officer Canady then asked Mr. McCurdy if he was driving with a suspended license, to which Mr. McCurdy replied, "he might be." Report of Proceedings (RP) (Dec. 6, 2006) at 66. Officer Canady asked Mr. McCurdy for his name and went back to his car where he checked the name with dispatch and discovered that Mr. McCurdy's license was suspended.
Officer Canady arrested Mr. McCurdy for driving while license suspended, placed Mr. McCurdy in the back of the police car, and searched Mr. McCurdy's car, incident to the arrest. In the back seat of the car, Officer Canady found a bag containing a baggie of methamphetamine, a yellow glass smoking pipe, a silver metal pipe with burnt residue, a clear baggie with a Q-Tip, tooth picks, and an alcohol wipe. A third brown-stained glass smoking pipe was also found in the front seat. After Mr. McCurdy was read his Miranda rights, he admitted to the officer that he owned all of the contraband. Officer Canady did not cite Mr. McCurdy for parking on the wrong side of the road or for having expired license tabs. At the suppression hearing, Officer Canady testified that he had given citations to drivers for parking on the wrong side of the street.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966).
The court denied Mr. McCurdy's motion to suppress. He was convicted of possession of methamphetamine, use of drug paraphernalia, and third degree driving while license suspended. This appeal followed.
ANALYSIS
Preservation of Judicial Review. RAP 2.5(a) states that "[t]he appellate court may refuse to review any claim of error which was not raised in the trial court." The State contends that under RAP 2.5(a), Mr. McCurdy is barred from arguing that the stop was pretextual because his argument at the trial level was different than his argument on appeal. The State asserts that during the hearing on the motion to suppress, Mr. McCurdy argued that the reason for the search was "for something else, possibly the drugs that were found." Br. of Resp't at 6. In contrast, on appeal, Mr. McCurdy argues that the reason for the search was to determine whether his license was suspended.
The State's argument is unpersuasive. Mr. McCurdy contended at trial, and contends on appeal, that the stop was pretextual. In support of the motion to suppress, Mr. McCurdy cited several pretextual stop cases as he does now on appeal. The issue at the suppression hearing and on appeal is the same: whether the stop was pretextual.
Standard of Review. "Unchallenged findings of fact entered following a suppression hearing are verities on appeal." State v. Gaines, 154 Wn.2d 711, 716, 116 P.3d 993 (2005). We must determine whether the unchallenged findings of fact support the conclusions of law. Conclusions of law pertaining to the suppression of evidence are reviewed de novo. Id. (quoting State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999), overruled on other grounds by Brendlin v. California, ___ U.S. ___, 127 S. Ct. 2400, 168 L.Ed.2d 132 (2007)).
Pretext. Article I, section 7 of the Washington State Constitution provides: "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." A pretextual stop is one where "the police are pulling over a citizen, not to enforce the traffic code, but to conduct a criminal investigation unrelated to the driving." State v. Ladson, 138 Wn.2d 343, 349, 979 P.2d 833 (1999). Article I, section 7 of the Washington Constitution requires the court to look beyond the "formal justification for the stop to the actual one." Id. at 353. When determining whether a stop is pretextual "the court should consider the totality of the circumstances, including both the subjective intent of the officer as well as the objective reasonableness of the officer's behavior." Id. at 359.
In State v. Myers, Division Three applied the Ladson standard when it considered a case that is factually similar to the case here. State v. Myers, 117 Wn. App. 93, 69 P.3d 367 (2003). Mr. Myers drove past a sheriff's deputy who recognized Mr. Myers because his license had been suspended. The deputy ran a license check while he followed Mr. Myers's car. Before the license check was completed, Mr. Myers made an illegal lane change for which the deputy pulled him over. Mr. Myers's license turned out to be valid, but the deputy discovered that there was an outstanding warrant for the passenger's arrest. The deputy arrested the passenger and, pursuant to the arrest, searched the car, found methamphetamine, and arrested Mr. Myers. Id. at 95.
The trial court denied Mr. Myers's motion to suppress the evidence. Upon examining the totality of the circumstances, this court reversed Mr. Myers's conviction, holding that the stop was pretextual and that the seized evidence should have been suppressed. Id. at 97-98. Our court found the State's argument unpersuasive that the stop was reasonable because the deputy had pulled others over for the same traffic infraction in the past.
Mr. McCurdy contends that Myers is analogous to his case. Mr. McCurdy acknowledges that his case differs from Myers because Officer Canady did not testify that he stopped Mr. McCurdy for the minor traffic infraction to investigate whether his license was suspended. Mr. McCurdy was stopped and parking illegally in a car with expired license tabs before the officer pulled in behind him. Unlike Myers, the officer here did not seize Mr. McCurdy to permit investigation into Mr. McCurdy's driving status; the officer seized Mr. McCurdy to prevent him from departing the scene of parking and license tab infractions.
The State contends that the subjective prong of the Ladson standard is met because the officer's intent was to cite Mr. McCurdy for the traffic infraction. Similarly, the State argues that the objective reasonableness prong of the Ladson standard is met because Officer Canady testified that he cited "several" other drivers for parking on the wrong side of the street. RP (Dec. 6, 2006) at 32.
Because Mr. McCurdy does not challenge the trial court's findings, they are verities on appeal. The trial court's findings depict a normal traffic stop. According to the court's findings, the officer recognized Mr. McCurdy from prior contacts and arrests; the officer witnessed Mr. McCurdy park on the wrong side of the road; Mr. McCurdy's license tabs were expired; when Mr. McCurdy exited the vehicle and began to walk away from the car the officer told Mr. McCurdy to stop; the officer proceeded to ask Mr. McCurdy for his driver's license, registration, and insurance, but Mr. McCurdy had none of these items; the officer asked Mr. McCurdy if his license was suspended and Mr. McCurdy said it might be; and the officer ascertained that Mr. McCurdy was driving with a license suspended in the third degree, placed Mr. McCurdy under arrest, and searched his car incident to the arrest. These findings do not establish that the officer's intent was to use the traffic stop as an excuse to investigate an unrelated, nontraffic criminal incident. We agree with the trial court's conclusion that the stop was not pretextual.
Mr. McCurdy next argues that there was insufficient evidence to convict him of the use of drug paraphernalia. The standard of review for a claim of insufficient evidence is high. Evidence is viewed in the light most favorable to the State, and the court asks whether any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Hepton, 113 Wn. App. 673, 681, 54 P.3d 233 (2002).
Mr. McCurdy was convicted of the use of drug paraphernalia as defined by RCW 69.50.412(1), which prohibits the use of drug paraphernalia to "store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance." Drug paraphernalia, within the meaning of the statute and as it applies to this case, is "all equipment, products, and materials of any kind which are used, intended for use, or designed for use in . . . storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance." RCW 69.50.102(a). Possession alone is not enough to convict a person of the use of drug paraphernalia; there must be something more. See State v. Neeley, 113 Wn. App. 100, 108, 52 P.3d 539 (2002); State v. Lowrimore, 67 Wn. App. 949, 959, 841 P.2d 779 (1992).
Mr. McCurdy contends that his case is similar to State v. Godsey, a case where Ray Godsey was found with "two clear pipes with burn marks, a syringe, and two zip-lock baggies" containing 0.1 gram of methamphetamine residue. State v. Godsey, 131 Wn. App. 278, 283, 127 P.3d 11, review denied, 158 Wn.2d 1022 (2006). In Godsey, this court held that Mr. Godsey's statements made to medical personnel in the presence of the police about his drug use should have been suppressed because of Mr. Godsey's right to physician-patient confidentiality. Id. at 286.
As the State points out, there is a key difference between Mr. McCurdy's case and Godsey: Mr. Godsey possessed pipes with burn marks and baggies that contained residue, whereas Mr. McCurdy possessed a pipe with burnt residue and baggies of methamphetamine. Clearly, having a pipe with burnt residue inside is different than having a pipe in which the glass is burnt. It is reasonable to conclude that a rational trier of fact would deduce that the residue present in Mr. McCurdy's pipe was a controlled substance and that the presence of the residue was sufficient to constitute the "something more" needed to convict him for use of drug paraphernalia.
The State also points out that the "something more" can be behavior. In Neeley and Lowrimore, the court looked at the time and location of arrest, coupled with the defendants' behavior, to conclude that there was sufficient evidence to conclude that the paraphernalia was both used and possessed. Neeley, 113 Wn. App. at 108; Lowrimore, 67 Wn. App. at 958-59. Although Mr. McCurdy's behavior may not have been as extreme as that of the defendants in Lowrimore and Neeley, his actions were definitely suspect. All of the following facts were presented to the jury at trial: Mr. McCurdy testified that he was driving from house to house at 3:30 am.; he testified that he went into one home for 20 to 30 minutes, leaving the passenger in the car; and he drove on the wrong side of the road and stopped abruptly outside an apartment where he did not live. Mr. McCurdy possessed a barely useable amount of methamphetamine, suggesting he had used the rest; and he possessed drug paraphernalia, including a pipe with burnt residue. Thus, his behavior at the time of arrest and presence of paraphernalia constitute facts that are sufficient for a reasonable trier of fact to conclude that he used the drug paraphernalia.
We affirm Mr. McCurdy's convictions for possession of methamphetamine and use of drug paraphernalia. The State concedes that Mr. McCurdy's conviction for third degree driving while license suspended should be reversed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
KORSMO, J. and BROWN, J., concur.