Opinion
No. 30935-1-II
Filed: December 7, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Lewis County. Docket No: 03-1-00284-9. Judgment or order under review. Date filed: 10/08/2003. Judge signing: Hon. Richard Lynn Brosey.
Counsel for Appellant(s), Jodi R. Backlund, Backlund Mistry, 203 4th Ave E Ste 217, Olympia, WA 98501-1187.
Manek R. Mistry, Backlund Mistry, 203 4th Ave E Ste 217, Olympia, WA 98501-1187.
Counsel for Respondent(s), J. Andrew Toynbee, Attorney at Law, M/S Pr001, 360 NW North St, Chehalis, WA 98532-1925.
Pennie Ann Routt appeals her convictions for possession of methamphetamine and use of drug paraphernalia, contending that (1) the evidence should have been suppressed because the police officer's reason for the initial traffic stop, obstructing the roadway, was invalid because the State did not make a showing that the road was `publicly maintained' as required by statute and (2) evidence discovered in Routt's clothing during a warrantless strip search at the Lewis County Jail should have been suppressed because the statute authorizing the strip search, RCW 10.79.130, is unconstitutional. Because the initial stop of the car was valid and the evidence discovered in Routt's car supports both convictions, we affirm but do not address Routt's challenge to the constitutionality of the statute.
RCW 69.50.401(1) states: `Except as authorized by this chapter, it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance.'
RCW 69.50.412(1) states:
It is unlawful for any person to use drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance. Any person who violates this subsection is guilty of a misdemeanor.
FACTS
On the evening of April 2, 2003, after dark, driver Routt and passenger James Helland were in a Nissan Sentra stopped in a cul-de-sac in Winterwood Estates, an unfinished residential development in Centralia, Lewis County. Although there was only one finished house on that particular street, it was a public street lit by streetlights.
Officer Michael Lowrey of the Centralia Police Department was on routine patrol in the area when he crested a hill and saw Routt's car parked two and a half feet from the curb with its dome light on. He found the dome light suspicious. Although there was no traffic at the time, Lowery was not sure whether a large sports utility vehicle would have been able to pass the car. As Lowery approached in his car, the car started up and began to pull away from the curb. Lowrey activated his lights, blocked the Sentra with his vehicle, and approached the Sentra on foot.
Lowrey testified that illegal dumping and vandalism occur in the area and that people go up there to `make out.' Report of Proceedings (RP) (Aug. 6, 2003) at 20.
Routt and Helland both testified that the car was stopped a foot from the side of the road.
When his vehicle's lights shone into the Sentra, Lowrey noticed that Routt and Helland were not wearing seatbelts; but Lowrey acknowledged at the suppression hearing that he had already decided to stop the car at that point in time.
Lowery asked Routt for her license, registration, and proof of insurance. Routt produced a driver's license but informed Lowrey that she did not have registration or insurance documents. Helland did not have identification but gave Lowrey his name. Lowery learned from his dispatch that Helland had warrants out for his arrest. From his vehicle, Lowrey saw Routt and Helland moving around the Sentra as if looking for something. Fearing that Helland would flee, Lowrey called for backup.
Lowrey arrested Helland and searched the Sentra incident to this arrest. Between the front seats, Lowrey found an orange and black eyeglasses case with plastic bindles, or small baggies, containing methamphetamine and a `snort straw' inside. Report of Proceedings (RP) (Aug. 6, 2003) at 15.
See State v. Cass, 62 Wn. App. 793, 796-97, 816 P.2d 57 (1991) (permitting search of passenger compartment of car incident to arrest of passenger), review denied, 118 Wn.2d 1012 (1992).
According to Lowrey, a snort straw is `a common household straw that has been cut short for snorting methamphetamine [or] cocaine.' RP (Sept. 18, 2004) at 16.
Lowrey arrested Routt for possession of methamphetamine and transported her to the Lewis County Jail. There, Kimber Maynard conducted a strip search of Routt. Maynard testified that a strip search was mandatory for anyone coming into the jail on drug charges. The jail's strip search procedure, which Maynard followed in this case, begins with patting down an individual in the `prebook' area and removing her shoes and jacket. The individual is then taken to a search room, where Maynard takes her shirt, bra, panties, and underwear. Maynard pats down this clothing in the search room and then sets the clothing outside of the room. For her safety, Maynard waits to do a more thorough search of the clothing until she is out of the search room. She then puts the clothing into a property bag. Maynard testified that during this second, more thorough search, she located a baggie of a white crystal substance in Routt's bra (in the area where a pad insert would normally be placed) and a baggie in the right watch pocket of Routt's jeans. The substance tested positive for methamphetamine.
Routt was charged with possession of methamphetamine and use of drug paraphernalia. On May 1, 2003, she moved to suppress the evidence seized without a warrant and, at her CrR 3.6 hearing she argued that the traffic stop was invalid. The Hon. David R. Draper determined that the actions of Lowrey in stopping the car `were both subjectively and objectively reasonable for the parking violation and therefore, the stop was not pretextual.' Clerk's Papers (CP) at 14.
At Routt's September 18, 2003 bench trial, the State asked the court to convict for possession based on the methamphetamine found in Routt's watch pocket following the strip search at the jail. The court found Routt guilty of possession of methamphetamine based on both the methamphetamine found in the car and that found in her clothing.
Routt appeals her convictions.
ANALYSIS Standard of Review
When reviewing the denial of a defendant's motion to suppress evidence, we determine whether substantial evidence supports the trial court's findings of fact and then determine whether the findings support the conclusions of law. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999); State v. Hill, 123 Wn.2d 641, 644, 647, 870 P.2d 313 (1994). We review de novo the trial court's conclusions of law. Mendez, 137 Wn.2d at 214. Unchallenged findings are considered verities on appeal. See Hill, 123 Wn.2d at 647. And we may examine the trial court's oral ruling to interpret ambiguous written findings and conclusions. State v. Hescock, 98 Wn. App. 600, 606, 989 P.2d 1251 (1999).
Initial Vehicle Stop
Routt contends that the trial court should have suppressed the physical evidence in this case because Lowrey's reason for the initial stop of the car, obstruction of the roadway, was invalid because the State did not make a showing that the road was `publicly maintained' as required by statute.
The State bears the burden of proving that a warrantless stop or seizure falls into one of the few `jealously and carefully drawn' exceptions to the warrant requirement. State v. Duncan, 146 Wn.2d 166, 171, 43 P.3d 513 (2002) (quoting State v. Williams, 102 Wn.2d 733, 736, 689 P.2d 1065 (1984)). These exceptions are consent, exigent circumstances, searches incident to a valid arrest, inventory searches, plain view searches, and investigative detentions. Duncan, 146 Wn.2d at 171-72 (citing State v. Rife, 133 Wn.2d 140, 150-51, 943 P.2d 266 (1997)).
As to the last of these exceptions, police may briefly detain and question an individual even though probable cause is lacking if they have a well-founded suspicion based on objective facts that he is connected to actual or potential criminal activity. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). See also State v. Sieler, 95 Wn.2d 43, 46, 621 P.2d 1272 (1980). In order to make such an investigative detention, a police officer must be able to point to `specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.' Williams, 102 Wn.2d at 739 (quoting Terry, 392 U.S. at 21). Such facts are `judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search `warrant a [person] of reasonable caution in the belief' that the action taken was appropriate?' State v. Almanza-Guzman, 94 Wn. App. 563, 566, 972 P.2d 468 (1999) (quoting State v. Barber, 118 Wn.2d 335, 343, 823 P.2d 1068 (1992)). The level of articulable suspicion required for a car stop is no greater than required for a pedestrian stop. State v. Kennedy, 107 Wn.2d 1, 6, 726 P.2d 445 (1986) (citing Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979)).
Here, in an unchallenged finding of fact, which we treat as a verity on appeal, the trial court found that Lowery observed the Sentra `blocking the travel portion of the roadway.' CP at 13. In its oral ruling, the trial court stated, `Regardless of the width of the street . . . what the officer sees is a car parked blocking the traveled portion of the roadway. . . . I know it's a violation of something.' RP (Aug. 6, 2003) at 46. From this, the trial court concluded that Lowrey's actions in making the initial stop were both subjectively and objectively reasonable.
The argument at trial focused in part on whether the stop was pretextual under State v. Ladson, 138 Wn.2d 343, 979 P.2d 833 (1999).
RCW 46.61.575, which the parties agree is the statute providing the basis for the traffic stop, states in part:
(1) Except as otherwise provided in this section, every vehicle stopped or parked upon a two-way roadway shall be so stopped or parked with the right-hand wheels parallel to and within twelve inches of the right-hand curb or as close as practicable to the right edge of the right-hand shoulder.
(2) Except when otherwise provided by local ordinance, every vehicle stopped or parked upon a one-way roadway shall be so stopped or parked parallel to the curb or edge of the roadway, in the direction of authorized traffic movement, with its right-hand wheels within twelve inches of the right-hand curb or as close as practicable to the right edge of the right-hand shoulder, or with its left-hand wheels within twelve inches of the left-hand curb or as close as practicable to the left edge of the left-hand shoulder.
For purposes of title 46 RCW, the term `roadway' is defined as `that portion of a highway improved, designed, or ordinarily used for vehicular travel, exclusive of the sidewalk or shoulder.' RCW 46.04.500. In turn, `highway' is defined as `the entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel.' RCW 46.04.197.
Routt argues that the evidence discovered following the traffic stop and the search incident to the passenger's arrest must be suppressed because the State did not show, and the court's findings did not support, that the roadway was publicly maintained.
But here, the question is whether the officer's belief that an infraction was being committed was reasonable, not whether each of the elements of the statute were satisfied to their letter. And under these circumstances, it was objectively reasonable for Lowrey to believe that the car was improperly stopped on a publicly-maintained street. The trial court's findings that Lowrey was on a routine patrol on a public street in an area located within Centralia support the conclusion that Lowrey's belief that an infraction was being committed was reasonable. The trial court did not err in denying Routt's motion to suppress the evidence. Warrantless Strip Search.
Routt also contends for the first time on appeal that evidence discovered in her clothing during a warrantless strip search at the Lewis County Jail should be suppressed because the statute authorizing the strip search, RCW 10.79.130, is unconstitutional.
A person is `strip searched' if he or she is made to `remove or arrange some or all of his or her clothing so as to permit an inspection of the genitals, buttocks, anus, or undergarments of the person or breasts of a female person.' RCW 10.79.070(1). Under RCW 10.79.130(1)(a), a warrantless strip search is permitted where:
There is a reasonable suspicion to believe that a strip search is necessary to discover weapons, criminal evidence, contraband, or other thing concealed on the body of the person to be searched, that constitutes a threat to the security of a holding, detention, or local correctional facility.
Under the second part of the statute, `[a] reasonable suspicion is deemed to be present when the person to be searched has been arrested for . . . (c) [a]n offense involving possession of a drug or controlled substance under chapter 69.41, 69.50, or 69.52 RCW or any successor statute.' RCW 10.79.130(2).
The State asked the trial court to find Routt guilty based on the methamphetamine discovered on her person. But because the trial court stated that it was also finding Routt guilty based on the methamphetamine discovered in the car, it is not necessary to address this contention here.
In State v. Audley, 77 Wn. App. 897, 908, 894 P.2d 1359 (1995), Division One held that a strip search under the statute was valid under both article I, section 7 of the Washington Constitution and the Fourth Amendment. But the court rejected the State's position that the reasonableness of warrantless strip searches of arrestees could be resolved under the search incident to arrest exception alone, explaining:
[W]arrantless strip searches must, at a minimum, be based on individualized, reasonable suspicion that the arrestee is concealing contraband. Reasonable suspicion to conduct a strip search may be based on factors such as the nature of the offense for which a suspect is arrested and his or her conduct.
Audley, 77 Wn. App. at 908 (citing Giles v. Ackerman, 746 F.2d 614, 617 (9th Cir. 1984), cert. denied, 471 U.S. 1053 (1985)). Routt asserts the scope of the search must be determined on a case-by-case basis and that the part of the statute that always authorizes a strip search following a drug arrest is unconstitutional. See State v. Porter, 102 Wn. App. 327, 334, 6 P.3d 1245 (2000) (`Where a valid custodial arrest occurs, police officers are not required to weigh whether the totality of the circumstances justifies a search incident to an arrest. . . . . The totality of the circumstances will determine, however, the proper scope of the search.') (emphasis added). But as applied here, RCW 10.79.130 is constitutional because the evidence in the record shows that the search was supported by reasonable suspicion that Routt was concealing contraband that posed a threat to jail security. Although the trial court did not make findings on the matter because the issue was not raised at trial, the crime for which Routt was arrested, possession of methamphetamine, and her conduct in the car prior to arrest clearly support a reasonable suspicion that Routt was concealing methamphetamine that would be discovered during a strip search.
Police using lawful means found Routt in possession of methamphetamine. Thus, we affirm.
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.
HOUGHTON, J. and BRIDGEWATER, J., Concur.