Opinion
No. 26870-5-III.
September 22, 2009.
Appeal from the Superior Court, Benton County, No. 07-1-01091-6, Vic L. VanderSchoor, J., entered January 31, 2008.
Affirmed by unpublished opinion per Sweeney, J., concurred in by Schultheis, C.J., and Brown, J.
This appeal follows a conviction for possession of pseudoephedrine with intent to manufacture methamphetamine. The question raised is whether the police had specific and objective facts sufficient to support a reasonable suspicion that the person stopped committed or was about to commit a crime. We conclude the circumstances justified the stop. The defendant also challenged the propriety of the search here incident to the arrest based on the recent United States Supreme Court case of Arizona v. Gant, ___ U.S. ___, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009). We conclude that it was reasonable for the police to assume they would find evidence of the crime they ultimately charged the defendant with and, therefore, the search of her car was justified under the Gant decision. We affirm the conviction.
FACTS
Molly Jo Rinehart and Patrick Maines tried to buy Sudafed at a Rite Aid store on Columbia Center Boulevard in Kennewick, Washington, on the evening of November 2, 2007. Rite Aid refused the sale because Ms. Rinehart and Mr. Maines were on a watch list for buying illegal amounts of Sudafed from three stores: the Columbia Center Rite Aid store, a local Target store, and a Rite Aid store on North Ely in Kennewick.
The Columbia Center Rite Aid then called the North Ely Rite Aid to warn employees there that Ms. Rinehart and Mr. Maines might try to purchase Sudafed from them. Amanda Santos, an employee at the North Ely Rite Aid store, called police and informed them that Ms. Rinehart and Mr. Maines had already been to Target. Officer Kenny Melone waited in his cruiser behind the North Ely Rite Aid for Ms. Rinehart and Mr. Maines to arrive. They arrived.
Mr. Maines then attempted to buy Sudafed at the North Ely Rite Aid about 10 minutes later. Ms. Santos notified police. Officer Melone entered the store and saw Mr. Maines at the counter with a box of Sudafed and some cash. He detained Mr. Maines, who produced Oregon identification and explained that he had traveled from Oregon to purchase pseudoephedrine in Kennewick because he was sick and Oregon does not sell the medicine.
Officer Melone radioed Officer Ryan Kelly and asked him to check the Rite Aid parking lot for a female sitting in a car with Oregon license plates. Officer Kelly found the car and pulled in behind it. He detained the woman in the car. He identified her as Ms. Rinehart and arrested her on two outstanding warrants. He then searched the car and found 22 boxes of Sudafed cold medicine, a pack of lithium batteries, and Xylol Xylene.
The State charged Ms. Rinehart with possession of pseudoephedrine with intent to manufacture methamphetamine. Ms. Rinehart moved to suppress the evidence officers found in her car after her arrest. The trial court entered findings of fact and conclusions of law and denied the motion. Ms. Rinehart's attorney, Christopher Swaby, then told the court that he would proceed to a stipulated facts trial.
Mr. Swaby reiterated his intent to stipulate to the facts for trial on the day of trial:
Mr. Swaby: . . . Mr. Bieker, didn't I sign off on the
Mr. Bieker: Actually you signed off on findings of fact conclusions of law. But also I don't think that I published it to you. There is a statement on agreed facts, which largely — approach the bench? Incorporates the findings at the 3.6 hearing.
Mr. Swaby: If I need to sign off on that, I'm happy to do so, your Honor.
MR. BIEKER: Oh, I'm sorry.
MR. SWABY: Thank you.
Report of Proceedings (RP) (Jan. 31, 2008) at 2. The court then signed findings and conclusions and found Ms. Rinehart guilty of possession of pseudoephedrine with intent to manufacture methamphetamine.
DISCUSSION
Reasonable Suspicion of Criminal Activity
Ms. Rinehart begins by noting that a Terry stop is permissible only if the arresting officer has specific and objective facts that create a reasonable suspicion that the person stopped committed or is about to commit a crime. She argues from this that the officer here had neither specific nor objective facts that she was engaged in or about to be engaged in criminal activity.
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
We review a trial court's decision denying a CrR 3.6 motion to suppress by considering whether substantial evidence supports the challenged findings of fact and, if so, whether the findings support the conclusions of law. State v. Griffith, 129 Wn. App. 482, 487, 120 P.3d 610 (2005).
A police officer may conduct an investigatory stop ( Terry stop) if the officer can point to "`specific and articulable facts giving rise to a reasonable suspicion that the person stopped is, or is about to be, engaged in criminal activity.'" State v. Armenta, 134 Wn.2d 1, 10, 948 P.2d 1280 (1997) (quoting State v. Gleason, 70 Wn. App. 13, 17, 851 P.2d 731 (1993)). The reasonableness of the officer's suspicion is determined by the totality of the circumstances known to the officer at the inception of the stop. State v. Glover, 116 Wn.2d 509, 514, 806 P.2d 760 (1991).
A court may consider what was known by more than one officer when the police are working as a unit. State v. Maesse, 29 Wn. App. 642, 647, 629 P.2d 1349 (1981). A Terry stop conducted under this "fellow officer rule" is justified only if the police agency issuing the information has enough information to support a reasonable suspicion of criminal activity. See State v. Gaddy, 152 Wn.2d 64, 71, 93 P.3d 872 (2004) (applying fellow officer rule to standard of probable cause for arrest).
Ms. Rinehart challenges Findings of Fact 10 through 13 to the extent that they find:
• "Defendant Maines first stated that defendant Rinehart left, and then stated that no female was with him." Clerk's Papers (CP) at 25 (Finding of Fact 10).
• Officer Kelly had a physical description of Ms. Rinehart. See CP at 25-26 (challenged portion of Finding of Fact 11 states that "Officer Kelly checked the parking lot . . . for . . . a female matching defendant Rinehart's description").
• "Officer Kelly found the vehicle almost immediately." CP at 26 (Finding of Fact 12).
• "Rinehart was nervous, was fidgeting with her hands," when Officer Kelly asked her why she was in the Rite Aid parking lot.
CP at 26 (Finding of Fact 13).
Ms. Rinehart is correct that these facts, to the extent challenged, are not supported by the record. Testimony offered at the suppression hearing shows that (1) Mr. Maines told Officer Melone that he was alone; (2) Officer Kelly did not have a physical description of Ms. Rinehart; (3) Officer Kelly found Ms. Rinehart's vehicle in the first aisle of the Rite Aid parking lot; and (4) Ms. Rinehart only whispered, looked away, and sat with her back to the window when Officer Kelly contacted her. RP (Jan. 3, 2008) at 4-5, 10, 11, 16.
But other unchallenged findings support the conclusion that Officer Kelly had reasonable suspicion to stop Ms. Rinehart. And, of course, unchallenged findings are verities on appeal. State v. Christian, 95 Wn.2d 655, 656, 628 P.2d 806 (1981). The police here knew that Ms. Rinehart and Mr. Maines were on a watch list for purchasing illegal amounts of pseudoephedrine. They knew that the two had a pattern of buying Sudafed at three different stores: the Columbia Center Rite Aid, the Target, and the North Ely Rite Aid. They knew that Ms. Rinehart and Mr. Maines tried to buy Sudafed that day at the Columbia Center Rite Aid. They knew that the pair had just left Target and that Mr. Maines tried to buy Sudafed at the North Ely Rite Aid. And they knew that he traveled from Oregon to buy the Sudafed. Finally, they knew that a lone female was sitting in a car with Oregon plates in the Rite Aid parking lot. These facts support the conclusion that officers had sufficient reasonable suspicion to stop the woman in the car. Agreement to Stipulated Facts Trial
Ms. Rinehart next argues that neither she nor her attorney, Mr. Swaby, agreed to a stipulated facts trial. The record here suggests otherwise.
Mr. Swaby stated after Ms. Rinehart's suppression hearing that his "inclination now is to go to a stipulated facts trial." RP (Jan. 3, 2008) at 27. Then, on the day of trial, Mr. Swaby agreed to sign a statement of agreed facts which incorporated the findings from the suppression hearing if he had not already done so. RP (Jan. 31, 2008) at 2. Ms. Rinehart was present in the courtroom at the time, and she said nothing. The stipulation was made in open court and on the record and is binding on Ms. Rinehart. See State v. Parra, 122 Wn.2d 590, 601, 859 P.2d 1231 (1993) ("Stipulations are favored by courts and will be enforced unless good cause is shown to the contrary.").
We, then, will not revisit the findings of fact here. A defendant who stipulates to facts, even incorrect facts, waives the right to require the State to prove the stipulated elements at trial. State v. Stevens, 137 Wn. App. 460, 466, 153 P.3d 903 (2007); In re Pers. Restraint of Cadwallader, 155 Wn.2d 867, 875, 123 P.3d 456 (2005). Moreover, neither party may contend on appeal that the facts were other than as stipulated. See Parra, 122 Wn.2d at 601. Our review, instead, is limited to the questions of law Ms. Rinehart raises — whether the findings support the trial court's conclusions. State v. Williams, 135 Wn. App. 915, 922, 146 P.3d 481 (2006).
Ms. Rinehart argues that Finding of Fact 16 does not support the court's conclusion that she intended to manufacture methamphetamine. The court concluded:
[O]n the 2nd day of November, 2007 in Benton County Washington the defendant possessed 22 boxes of Sudafed Cold Medicine which contains Pseudoephedrine or ephedrine; a pack of Lithium batteries and Xylol Xylene; with the intent to manufacture methamphetamine.
CP at 20 (Conclusion of Law 7).
Bare possession of pseudoephedrine is not enough to support the conclusion that she intended to manufacture methamphetamine. State v. McPherson, 111 Wn. App. 747, 759, 46 P.3d 284 (2002). "[A]t least one other factor supporting an inference of intent must exist." Id.
Here, the court found that Ms. Rinehart possessed not only pseudoephedrine, but also lithium batteries and Xylol Xylene, two other components necessary to make methamphetamine. Possession of lithium, in addition to pseudoephedrine, is adequate proof of intent to manufacture methamphetamine. State v. Missieur, 140 Wn. App. 181, 188-89, 165 P.3d 381 (2007) (combination of lithium and pseudoephedrine makes the inference of intent to manufacture methamphetamine follow logically as a matter of probability); see State v. Montgomery, 163 Wn.2d 577, 586-87, 183 P.3d 267 (2008) (sufficient evidence of intent exists where defendant possessed pseudoephedrine and one other "distinctive ingredient" of methamphetamine). The court's conclusion that Ms. Rinehart intended to manufacture methamphetamine is, then, supported by the finding that she possessed pseudoephedrine and lithium batteries.
Arizona v. Gant
Appellate counsel asked to supplement his briefing with a discussion of the United States Supreme Court's recent holding in Gant, 129 S. Ct. 1710.
Here, the question is whether it was reasonable to believe that evidence of the offense for which Ms. Rinehart was arrested would be found in the car. And we conclude that it was. The police had reasonable suspicion that Ms. Rinehart and Mr. Maines were buying, in fact had already bought, ingredients to make methamphetamine. It was, then, reasonable for them to conclude that they would find those ingredients in her car.
Gant permits "a search incident to a lawful arrest when it is `reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.'" 129 S. Ct. at 1719 (quoting Thornton v. United States, 541 U.S. 615, 632, 124 S. Ct. 2127, 158 L. Ed. 2d 905 (2004)). And, here, Ms. Rinehart was arrested pursuant to warrants for unlawful purchase/possession of pseudoephedrine. The offenses for which she was arrested supplied a reasonable basis to believe that Ms. Rinehart's vehicle contained evidence relevant to those offenses. See id. There is nothing in Gant that would prohibit the search incident to this arrest.
We affirm the conviction.
A majority of the panel has determined that 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.
SCHULTHEIS, C.J. and BROWN, J., concur.