Opinion
No. 35421-7-II.
August 5, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-1-03350-9, Beverly G. Grant, J., entered October 6, 2006.
Affirmed by unpublished opinion per Houghton, J., concurred in by Penoyar, A.C.J., and Hunt, J.
Brandon Pettaway appeals his conviction of second degree escape, arguing that insufficient evidence supported his conviction because he was not lawfully in custody before he fled from police officers. We affirm.
FACTS
We derive the facts from the trial evidence.
On April 23, 2006, while on routine patrol, Tacoma Police Officer Kevin Lorberau observed a vehicle with no front license plate and a rear license plate that a records check revealed as expired. He stopped the vehicle and talked to the driver. While obtaining the driver's information, Lorberau noticed that the vehicle's passenger was not wearing a seat belt.
A records check on the vehicle's driver showed that he had a third degree license suspension.
While Lorberau was conducting the traffic stop, Officers Michael Sbory and Ashley Metzger arrived in their patrol vehicle. While Lorberau dealt with the driver, he asked Metzger to obtain the passenger's name so he could issue him a citation for not wearing a seat belt.
Metzger asked the passenger to identify himself. The passenger provided the name "Joseph R. Smith," a birth date and an address. Report of Proceedings (Sept. 13, 2006) (RP) at 24. Lorberau ran a records check on the name, but it did not generate any records. He then asked the passenger to verify his identity for purposes of citing him for the seat belt violation and the passenger provided the same name. He asked the passenger if he had ever been in jail before and if he had ever held a driver's license. The passenger replied yes to both questions, that he had been in jail and that he held a Washington identification card but not a driver's license. Lorberau told the passenger that the records check showed that he had not been in jail or ever had a driver's license.
In response, the passenger told Lorberau that he held identifications in other states. Lorberau ran a records check on the other states, but this also returned no record. During the inquiries regarding the passenger's identity, the passenger sat in the stopped vehicle and Lorberau stood next the vehicle's passenger door.
Lorberau asked the passenger to step back to the patrol vehicle so that he could verify his identity. Lorberau escorted the passenger to Sbory and Metzger's patrol vehicle, patted him down for weapons, and seated him in the back of the patrol vehicle with the doors closed.
Lorberau then searched the vehicle incident to the driver's arrest and discovered a copy of a Lakewood Municipal Court criminal citation under the passenger seat. It showed Pettaway's name, birth date, and address matching the information the passenger had provided. Lorberau returned to his own patrol vehicle, pulled up a booking photograph for Pettaway and identified him as the passenger. He ran a warrants check on Pettaway that showed that he had outstanding felony and misdemeanor warrants.
When Lorberau returned to Sbory and Metzger's patrol vehicle, he noticed Pettaway was "sort of squirming around in the back seat." RP at 29. When Lorberau and Metzger went to the rear driver's side of the patrol vehicle to place him under arrest for the outstanding warrant, Pettaway moved from the driver's side of the back seat to the passenger side.
Sbory walked to the passenger side and told Pettaway to move back over to the driver's side. Sbory and Metzger opened the rear door on the driver's side, and Metzger told Pettaway that he was under arrest.
Pettaway asked why they were arresting him, and Metzger told him that they were going to handcuff him. Pettaway pushed his way out of the vehicle, pushing Metzger so that she fell into Lorberau.
Lorberau pulled out his Taser and told Pettaway to stop but Lorberau could not immediately deploy the Taser because Metzger stood between him and Pettaway. Pettaway ran, followed by Lorberau and Metzger, who called for him to stop. Lorberau discharged his Taser at Pettaway as they ran, striking him in the back, but Pettaway reached behind and either pulled the probes out or they fell out and he continued running.
The officers did not capture Pettaway that day. Another officer picked him up a few days later. The State charged Pettaway with one count of second degree escape, RCW 6.120(1)(b), for escaping from custody after having been charged with the felony of first degree unlawful possession of a firearm.
Under RCW 9A.76.120(1)(b), a person is guilty of second degree escape if, having been charged with a felony, he knowingly escapes from custody. RCW 9A.76.010(1) defines "custody" in part as "restraint pursuant to a lawful arrest."
On November 18, 2005, the State charged Pettaway with first degree unlawful possession of a firearm and the trial court arraigned him that day. A trial court issued a bench warrant on April 11, 2006, when Pettaway failed to appear for an omnibus hearing. The felony warrant was still active when he fled from police custody on April 23.
Pretrial, the trial court heard argument on Pettaway's CrR 3.5, CrR 3.6, and Knapstad motions. State v. Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986) (the trial court has inherent power to dismiss a prosecution before trial if it is apparent that no rational fact finder could convict on the State's evidence). In his motion to suppress, Pettaway argued that the officers unlawfully detained him because insufficient evidence showed his involvement in any criminal activity. Thus, he asserted, the officers had no reason to request his name and his later detention in the back of a police vehicle constituted an unlawful seizure.
The trial court determined that the officers made the initial inquiries after Lorberau had probable cause to believe Pettaway had committed a safety belt violation. It found the information obtained after Metzger's initial contact admissible. The trial court reasoned that, although Rankin requires a law enforcement officer to have an independent basis to request identification from an automobile passenger involved in a traffic stop, it does not require a reasonable suspicion of criminal activity. State v. Rankin, 151 Wn.2d 689, 92 P.3d 202 (2004).
It further noted that Chelly provides that the necessary independent basis may be an investigative detention strictly for the purpose of obtaining a valid name and address for issuance of a citation for failure to wear a safety belt. State v. Chelly, 94 Wn. App. 254, 259-60, 970 P.2d 376 (1999).
The trial court found that, as in Chelly, specific and articulable facts justified detaining Pettaway for a reasonable time to ascertain his true identity. It decided that none of the statements Pettaway made during his contact with Lorberau, Metzger, and Sbory were obtained in violation of his constitutional rights. Finally, the trial court also denied Pettaway's Knapstad motion to dismiss, finding sufficient evidence for a rational fact finder to convict him of knowingly escaping from custody.
A jury heard the matter. At trial, Pettaway stipulated that on April 23, the State had charged him with a felony and a sufficient legal basis existed to arrest him on that felony warrant.
The jury convicted him of one count of second degree escape. He appeals.
ANALYSIS
Pettaway first contends that insufficient evidence supported his conviction of second degree escape. He asserts that officers arrested him twice. First, when they removed him from the vehicle and placed him in back of the patrol vehicle with the doors shut. And second, when they told him that he was under arrest on his outstanding warrants.
Pettaway argues that the officers' inability to confirm his identity or locate him in the records system did not give them probable cause to make the first arrest. He claims the first arrest taints the second. Thus, he asserts, he was not in lawful custody when he fled during the second arrest and insufficient evidence supported his conviction.
The test for determining the sufficiency of the evidence is whether, when viewing the evidence in the light most favorable to the State, any rational fact finder could have found guilt beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We draw all reasonable inferences from the evidence in the State's favor and interpret them most strongly against the defendant. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn from it. Salinas, 119 Wn.2d at 201.
Initially we note that Pettaway fails to assign error to the trial court's findings that (1) the officers' made initial inquiries about his identity after Lorberau had probable cause to believe Pettaway had committed a traffic infraction; (2) Lorberau had an independent basis to ask Pettaway for identification; and (3) the law entitled him to continue the investigation because, in the officer's experience, Pettaway provided suspicious information. We treat these unchallenged findings of fact as verities on appeal. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1993). Although we need not analyze this issue further, to the extent that Pettaway raises an argument implicating his Fourth Amendment right to protection from a warrantless search and seizure, we address the issue under RAP 2.5(a).
RAP 2.5(a) provides in part: "The appellate court may refuse to review any claim of error which was not raised in the trial court. However, a party may raise the following claimed errors for the first time in the appellate court."
An investigative detention, as a form of seizure, must be reasonable under the Fourth Amendment and Washington Constitution article I, section 7. State v. Kennedy, 107 Wn.2d 1, 4, 726 P.2d 445 (1986). An officer's request for identification from a passenger constitutes a detention for investigative purposes, which in turn constitutes a seizure. Rankin, 151 Wn.2d at 695. For that reason, an officer must have an independent reason justifying the request for identification. Rankin, 151 Wn.2d at 699. Although in Rankin, our Supreme Court held a warrantless seizure improper where an officer requested a passenger's identification without suspicion of criminal activity, it based its decision on particular facts and also on the State's contention that no seizure had occurred. 151 Wn.2d at 699. Rankin does not require that the independent basis for the identification request be suspicion of criminal activity but only that some independent justification for the request exists. 151 Wn.2d at 699-700.
A police office may issue a citation for failure to wear a seat belt in a motor vehicle. RCW 46.61.688(3), (5). Under RCW 46.61.021(2), where a person is stopped for a traffic infraction, a police 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." In addition, under RCW 46.61.021(3), a person requested to identify himself to law enforcement in a traffic infraction investigation has a duty to identify himself and provide his current address. Where the facts give rise to a reasonable belief that an individual has provided a false identity, that belief justifies extending a detention to allow for a warrants check. Chelly, 94 Wn. App. at 256. Further, an individual who commits a traffic infraction and fails to sufficiently identify himself to a police officer issuing a citation commits a misdemeanor. Chelly, 94 Wn. App. at 256.
Here, while performing a traffic stop, Lorberau observed Pettaway without a seat belt. Pettaway does not argue otherwise. Thus, Pettaway committed a traffic infraction which, in turn, permitted Lorberau to detain him in order to check his identity, and Lorberau had a sufficient independent basis to request Pettaway's identification.
Pettaway also had a corresponding duty to sufficiently identify himself. But twice he provided a false name. Pettaway made all of these statements while he was still a passenger in the vehicle and not under arrest.
Lorberau testified that when an individual provided a name and birth date, police could check that information through the Department of Licensing to find out if a driver's license or identification card or instruction permit had ever been issued to the individual. Metzger also testified about the significance of Pettaway's providing a name and information that matched no records.
Lorberau testified that, in his experience, it was suspicious for a records check to show that a driver's license or identification card had never been issued to an individual of age when one would expect him to have some form of identification. Likewise, the information Pettaway provided, that he had held a driver's license and had been in jail, conflicted with there being no record of him. At that point, Lorberau had a reasonable and articulable suspicion that Pettaway was not being truthful and he could lawfully extend the investigative detention for a reasonable period of time in order to identify Pettaway for the purpose of issuing the traffic infraction citation, as well as to run a warrants check based on a reasonable belief that Pettaway had provided a false identity (a criminal misdemeanor) or to dispel those suspicions.
Because Pettaway escaped, Lorberau did not issue a seat belt traffic infraction citation. See Chelly, 94 Wn. App. at 260-61.
Finally, not more than 15 minutes passed between the time Lorberau stopped the suspect vehicle and the time Pettaway fled. The length of his detention in the back of the patrol vehicle to determine his identity was reasonable. See State v. Walker, 24 Wn. App. 823, 828, 604 P.2d 514 (1979) (a temporary detention is justifiable under suspicious circumstances to enable an officer to determine whether there is probable cause to make an arrest).
Turning to the sufficiency of the evidence, to convict Pettaway of second degree escape, the State had to prove that he knowingly escaped from custody after having been charged with a felony. The jury heard evidence that Pettaway had been charged with a prior felony and that he escaped from police custody after being told that he was under arrest. He pushed his way out of a patrol vehicle and fled, pushing police officers aside, running from the officers while being told to stop, deflecting a police Taser, and eluding capture that day. Sufficient evidence supported his conviction.
RCW 9A.76.120 provides in pertinent part:
(1) A person is guilty of escape in the second degree if:
(a) He or she knowingly escapes from a detention facility; or
(b) Having been charged with a felony or an equivalent juvenile offense, he or she knowingly escapes from custody.
During argument, Pettaway dropped his claim of error based on miscalculation of his offender score and we do not address it.
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.
HUNT, J. and PENOYAR, A.C.J., concur.