Opinion
No. 19416-7-III.
Filed: June 14, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Benton County, No. 99-1-00088-2, Hon. Craig J. Matheson, June 30, 2000, Judgment or order under review.
Counsel for Appellant(s), Kevin L. Holt, 6515 W Clearwater Ste 330, Kennewick, WA 99336.
Counsel for Respondent(s), Andrew K. Miller, Benton County Prosecutor, #e, 7320 W Quinault, Kennewick, WA 99336.
John V. Jensen, 7320 W Quinault Ave, Kennewick, WA 99336.
Following a Benton County trial on stipulated facts, Steven L. Sawyer was found guilty of possessing methamphetamine and disturbing an archeological resource. His appeal focuses on whether his stop satisfies Terry and the application of the plain touch doctrine to these facts. We affirm.
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
FACTS
On February 2, 1999, at 8:55 p.m., after normal closing, Benton County Sheriff's Deputy Jeff Hayter conducted a contractual security check of The Corps of Engineers' Plymouth Island recreational site. Deputy Hayter saw a vehicle with motor running and lights on, off the side of the road, just outside the gate to the Plymouth recreation area. One male was inside the vehicle and another was outside wearing heavy clothing and rubber boots. Deputy Hayter suspected poaching. Deputy Hayter called for backup and approached to investigate. The pair said they were checking the car's headlights, but, when asked, they did not know the vehicle's owner. Both men had bulges in their clothing, were evasive in their movements, turned from side to side, moved away from the deputy, and did not stay where instructed. It appeared to Deputy Hayter they were preventing him from approaching the vehicle.
Threatened by the conduct and fearing the suspects were armed, the deputy drew his weapon and asked the men to pull up their shirts and show their waistbands. The deputy then patted them down, starting with Mr. Sawyer. In Mr. Sawyer's pockets, Deputy Hayter felt several large cylindrical objects. He attempted to manipulate the objects, but could not identify them. The deputy retrieved the objects, which turned out to be batteries. Simultaneously, the deputy removed an ink pen tube containing a residue. The residue was methamphetamine. While patting down Mr. Bailey, Deputy Hayter found a marijuana pipe. Both men were immediately arrested.
In the search incident to their arrests, the deputy found evidence incriminating the men in disturbing the archeological resource at Plymouth Island. Additional methamphetamine evidence was discovered. Pursuant to a search warrant, Deputy Hayter located several small bags with pieces of rock flakes and arrowheads in the vehicle. A search of the surrounding area revealed more evidence of disturbing the archeological site. A search of the men's home pursuant to a search warrant revealed even more evidence incriminating the men of disturbing an archeological resource.
Mr. Sawyer was charged with possession of a controlled substance, methamphetamine, and disturbing an archeological resource. He unsuccessfully requested suppression of the evidence based upon Terry and the plain touch doctrine. Mr. Sawyer was convicted as charged in a stipulated-facts trial. This appeal followed.
ANALYSIS
The issue is whether the trial court erred by denying Mr. Sawyer's suppression motion and concluding the incriminating evidence was derived from a proper investigative search. Relying on State v. Ladson, 138 Wn.2d 343, 979 P.2d 833 (1999), Mr. Sawyer contends, for the first time on appeal, that the stop was unlawfully pretextual. An appellant may not raise for the first time on appeal an error predicated upon evidence allegedly obtained by an illegal search. State v. Silvers, 70 Wn.2d 430, 432, 423 P.2d 539 (1967). An exception exists under RAP 2.5(a) when a 'manifest error affecting a constitutional right' exists. State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995). This exception is not automatic. Id. at 333-34. An appellant must show the alleged error is 'manifest' by demonstrating actual prejudice. Id. at 333. If the record is sufficiently developed for us to determine whether a motion to suppress would have been granted or denied, review is permitted, even in the absence of a prior motion. See State v. Contreras, 92 Wn. App. 307, 312-13, 966 P.2d 915 (1998). Pretextual traffic stops violate article I, section 7 of our state constitution. Ladson, 138 Wn.2d at 358. Police may not effect a traffic stop to investigate suspicions unrelated to driving. Id. at 349. 'When determining whether a given 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 358-59.
The State argues Deputy Hayter's approach of the vehicle did not constitute a traffic stop; therefore, Ladson is inapplicable. The essence of the Ladson holding is that the police cannot stop a citizen to investigate suspicions unrelated to driving. Id. at 349. Here, driving was not a factor in the stop and a person was standing outside the vehicle under suspicious circumstances. Deputy Hayter had a contractual duty to patrol at Plymouth Island. Given these facts, Ladson is inapplicable.
Next, Mr. Sawyer contends the Terry stop was invalid, and if not, the frisk was excessive in scope. Mr. Sawyer argues the trial court should have suppressed the evidence seized because Deputy Hayter did not have reasonable suspicion to seize Mr. Sawyer. The trial court did not enter findings of fact and conclusions of law following the CrR 3.6 hearing, however, the trial court's clear and comprehensive oral opinion makes written findings a mere formality. State v. Smith, 76 Wn. App. 9, 16-17, 882 P.2d 190 (1994). "As a general rule, warrantless searches and seizures are per se unreasonable." State v. Hendrickson, 129 Wn.2d 61, 70, 917 P.2d 563 (1996) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)). Warrantless searches and seizures may, however, be reasonable under 'a few 'jealously and carefully drawn' exceptions. . . .' Ladson, 138 Wn.2d at 349 (quoting State v. Houser, 95 Wn.2d 143, 149, 622 P.2d 1218 (1980)). One exception exists when a police officer conducts a Terry stop by seizing an individual based on specific and articulable facts giving rise to a reasonable suspicion that there is criminal activity afoot. Terry, 392 U.S. at 21; State v. White, 97 Wn.2d 92, 105, 640 P.2d 1061 (1982).
Here, at approximately 9:00 p.m., Deputy Hayter observed a stopped vehicle off the side of the road in the trees with its motor running and lights on. It was just outside the gate to the closed Plymouth recreation area. One male was inside the vehicle and another was outside wearing heavy clothing and rubber boots. Both men's clothing contained suspicious bulges. Deputy Hayter saw the unusual clothing and suspected poaching. When he approached, Mr. Sawyer and Mr. Bailey were evasive when answering the deputy's questions, did not know who owned the car, were turning from side to side, preventing Deputy Hayter from approaching the vehicle, and did not stand where told. Based upon these circumstances, and the remoteness of the patrol area, articulable facts existed to conclude a reasonable suspicion of criminal activity. In other words, as the trial court decided, the Terry stop was warranted.
Mr. Sawyer next contends Deputy Hayter exceeded the scope of a limited Terry search. Terry, 392 U.S. at 20. A search incident to Terry is limited to 'that 'sufficient to assure the officer's safety." State v. Larson, 88 Wn. App. 849, 855, 946 P.2d 1212 (1997) (quoting State v. Kennedy, 107 Wn.2d 1, 12, 726 P.2d 445 (1986)). Some relevant factors include the number of officers at the scene, the number of vehicle occupants, and the behavior of the occupants. State v. Mendez, 137 Wn.2d 208, 220-21, 970 P.2d 722 (1999).
Here, the deputy was by himself in a remote unlit area, it was evening time, he was outnumbered, and Mr. Sawyer and Mr. Bailey were acting evasively. Therefore, for his safety, the deputy was justified in frisking Mr. Sawyer after first having him show his waistband; he did not exceed the scope of the Terry stop.
Mr. Sawyer next contends the scope of the frisk was exceeded under the plain touch doctrine. When a patdown is inconclusive, reaching into the suspect's clothing may be a reasonable course of action. State v. Hudson, 124 Wn.2d 107, 112, 874 P.2d 160 (1994). An example is when the individual is wearing heavy clothing, which renders an exterior patdown inconclusive. Id. at 112-13. 'If the officer feels an item of questionable identity that has the size and density such that it might or might not be a weapon, the officer may only take such action as is necessary to examine such object.' Hudson, 124 Wn.2d at 113 (citing Terry, 392 U.S. at 30).
Here, Deputy Hayter felt several large cylindrical objects. He attempted to manipulate the objects, but could not identify them. The deputy retrieved the objects, which turned out to be batteries. Upon removing the batteries, the deputy simultaneously removed an ink pen tube that contained methamphetamine residue.
The deputy removed the large cylindrical objects because he could not identify them and feared they were weapons. The ink pen tube with methamphetamine residue was inadvertently discovered. Based on the standards set forth in Terry and Hudson, Deputy Hayter did not exceed the scope of the search by manipulating and removing the cylindrical objects and did not violate the plain touch doctrine when he discovered the ink pen tube. The protective purpose of the search is substantiated and the reasonable basis therein supported by the record.
CONCLUSION
We hold the trial court did not err when refusing to suppress the evidence.
Affirmed.
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.
WE CONCUR: SCHULTHEIS, J., KATO, J.