Opinion
No. 36796-3-II.
February 12, 2009.
Appeal from a judgment of the Superior Court for Clark County, No. 07-1-00698-2, John F. Nichols, J., entered September 13, 2007.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Penoyar, A.C.J., concurred in by Bridgewater and Quinn-Brintnall, JJ.
A jury convicted David Smith of two counts of possession of a controlled substance and one count of unlawful use of drug paraphernalia. One of the two possession counts included a 12-month sentencing enhancement because some of the cocaine Smith possessed was discovered on his person inside the jail during the booking process. On appeal, Smith argues that the underlying traffic stop which led to the discovery of the cocaine was pretextual, that the trial court erred in imposing the 12-month sentencing enhancement, that the trial court erred in entering a judgment and sentence containing a scrivener's error and that the trial court erred in imposing a sentence enhancement based on count 2, which merged with count 1 for sentencing purposes, and therefore violated constitutional double jeopardy. We affirm the trial court's ruling that the traffic stop was legitimate and we affirm Smith's convictions. We vacate however, the trial court's imposition of the 12-month sentencing enhancement and remand for resentencing.
FACTS
On April 17, 2007, at approximately 2:00 a.m., Officer Jason Beach observed a car make a turn without signaling. Beach stopped the car. Smith was the driver and Beach discovered that Smith's license was suspended in the third degree and that he had two outstanding district court warrants.
Beach arrested Smith, placed him in handcuffs and searched his person. Beach removed a brown piece of tubing from one pocket and a black marking pen from the other. Because the marking pen worked, Beach placed it back into Smith's pocket. Beach proceeded to search Smith's car incident to arrest. In the car, he found a brass pipe fitting with a wire filter and piece of brown tubing similar to the one found in Smith's pocket. Beach also found a green sipper pouch in the car's center console containing what appeared to be crack cocaine.
When Beach discovered the crack cocaine, he read Smith his Miranda rights. RP (8/29/07) at 15. Officer Beach then transported Smith to jail. While being booked, jail staff discovered that the marking pen in Smith's pants pocket had been hollowed out and that the cavity held several more crack cocaine pieces. The State charged Smith with two counts of possession of a controlled substance and one count of unlawful use of drug paraphernalia. One of the possession counts was enhanced for committing the possession offense within a jail.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Prior to trial, the trial court held a CrR 3.6 suppression hearing, requested by defense, regarding the items seized from the search of Smith's car. Smith argued that Beach's stop was pretextual and thus, illegal. Beach testified that he did not recognize the car or driver at the time of the infraction and that he "just strictly saw the vehicle make a traffic infraction" and pulled the car over. 1 Report of Proceedings (RP) at 24. On cross examination, defense counsel elicited testimony from Beach that it was "possible" he had pulled Smith over in early 2007. 1 RP at 21. Smith testified that Beach regularly patrolled his neighborhood, knew where he lived and knew the vehicles he drove. Further, Smith testified that he had used his turn signal when turning.
After hearing argument from both sides, the trial court ruled that Beach's stop was "appropriate" and that he had asked for only "those things which he needs to have in order to deal with the infraction, license, registration and insurance." 1 RP at 38. Specifically, the trial court stated:
I do not find at any point in this whole process that this was a pretextual stop. This, in fact, was a legitimate operation of a police vehicle by a legitimate police officer.
1 RP at 39.
The jury convicted Smith on all counts including the jail possession sentence enhancement. The trial court merged the two possession convictions and sentenced Smith to 18 months for both counts. The trial court imposed a 12-month enhancement for possession of cocaine in a jail facility. Smith received 49 days for the unlawful use of drug paraphernalia conviction, with a 49 day time served credit.
Smith appeals.
ANALYSIS
I. Traffic Stop Was Not Pretexual
Smith argues that the trial court erred in ruling the traffic stop legitimate. The State argues that the trial court's ruling was appropriate given the testimony provided. We agree with the State.
We review a trial court's conclusion of law at a suppression hearing de novo and its findings of fact for substantial evidence. State v. Carter, 151 Wn.2d 118, 125, 85 P.3d 887 (2004). The trial court's findings must support the conclusions of law. State v. Vickers, 148 Wn.2d 91, 116, 59 P.3d 58 (2002). When serving as a fact finder, the trial court decides issues of fact and makes credibility determinations. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). We do not disturb credibility determinations on appeal. Camarillo, 115 Wn.2d at 71.
A pretextual traffic stop occurs when police make a stop, not to enforce the traffic code, but, rather, to conduct an investigation unrelated to driving. State v. Ladson, 138 Wn.2d 343, 351, 979 P.2d 833 (1999). Pretextual stops "generally take the form of police stopping a driver for a minor traffic offense to investigate more serious violations — violations for which the officer does not have probable cause." State v. Myers, 117 Wn. App. 93, 94-95, 69 P.3d 367 (2003). Pretextual stops are not permitted under Article 1, Section 7 of the Washington State Constitution. Ladson, 138 Wn.2d at 352-53. Under this restrictive standard, courts are required to "look beyond the formal justification for the stop to the actual one." Ladson, 138 Wn.2d at 353. When determining if a stop is pretextual, the court looks to the totality of the circumstances. Ladson, 138 Wn.2d at 358-59. The court must look to both the objective reasonableness of the officer's behavior and to the subjective intent of the officer. Ladson, 138 Wn.2d at 359.
In this case, the trial court heard from both Beach and Smith. Smith testified that Beach knew him, knew where he lived, and which cars he drove. Further, he testified that he turned his signal on before turning. On the other hand, Beach testified that (1) that he observed the car turn without using its signal and (2) though it was possible he had pulled Smith over previously, on this occasion he did not recognize Smith or the vehicle when he initiated the traffic stop. After pulling Smith over, Beach asked only for identification, license and registration materials, he did not make other inquiries unrelated to the infraction.
There were differences between Beach and Smith's testimony and it was for the trial court to review the totality of the circumstances to determine the true reason for the stop. The trial court noted, "[i]t comes down to a simple fact, did the officer see the [] taillight blink on and off or not." 1 RP at 37. The trial court made a credibility determination based on the testimony presented, stating:
And the question of credibility is what it comes down to, and I have no reason to doubt this officer's observation. He did not observe a turn signal . . . He made an appropriate stop. He asked only for those things which he needs to have in order to deal with the infraction, license, registration and insurance.
1 RP at 37-38. We do not review these credibility determinations on appeal. Camarillo, 115 Wn.2d at 71. Thus, we affirm the trial court's ruling.
Smith explains the law, recites the facts, and summarily concludes the stop was pretextual. There is no argument or analysis beyond this.
II. Trial Court Erred in Imposing Sentence Enhancement
Smith argues on appeal that the trial court erred in imposing the 12-month sentence enhancement for possession of cocaine in a jail facility, pursuant to RCW 9.94A.533(5), because he did not voluntarily bring the cocaine into the jail. We agree.
RCW 9.94A.533(5)(c) provides that 12 months "shall be added to the standard sentence range if the offender . . . committed the offense while in a county jail or state correctional facility and the offender is being sentenced for [possession of a controlled substance as prohibited in RCW 69.50.4013]."
We recently decided this issue in State v. Eaton, 143 Wn. App. 155, 177 P.3d 157 (2008). As Eaton explained, as a general ruled every crime must contain two elements: (1) an actus reus and (2) a mens rea. Eaton, 143 Wn. App. at 160 (citing State v. Utter, 4 Wn. App. 137, 139, 479 P.2d 946 (1971)). The actus reus is the wrongful deed that comprises the physical components of a crime. The mens rea is the state of mind that the prosecution must prove that a defendant had when committing a crime. Eaton, 143 Wn. App. at 160 (quotations and citations omitted).
Some crimes, including the crime of possession of a controlled substance, have no mens rea requirement. See RCW 69.50.4013(1). Thus, the State simply has the burden of proving the nature of the controlled substance and the fact of possession. Eaton, 143 Wn. App. at 160. Similarly, the sentence enhancement under RCW 9.94A.533(5) has no mens reas requirement. This sentence enhancement is not a separate sentence or a separate substantive crime. Rather, it presupposes that the defendant's behavior already constitutes a crime, such as possession of a controlled substance. Eaton, 143 Wn. App. at 160. Even strict liability punishments, however, i.e., those crimes and sentence enhancements having no mens rea requirement, require something of an element of volition. "There is a certain minimal mental element required in order to establish the actus reus itself. This is the element of volition. Eaton, 143 Wn. App. at 160 (quoting Utter, 4 Wn. App. at 139).
Like the defendant in Eaton, Smith correctly argues that his possession of cocaine in jail was not the result of a voluntary act. Once arrested, Smith no longer had control over his location or his possessions. That control rested with the arresting officer and the corrections officers at the jail. In other words, Smith did not voluntarily bring the cocaine into the jail. Consistent with Eaton, we hold that because Smith did not voluntarily bring the controlled substance into the jail, he did not violate RCW 9.94A.533(5). We affirm Smith's convictions but vacate the 12-month sentence enhancement under RCW 9.94A.533(5)(c) and remand for resentencing.
Because we vacate the 12-month sentence enhancement and remand for resentencing, there is no need for discussion on the two remaining issues on appeal.
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.
BRIDGEWATER, J. and QUINN-BRINTNALL, J., concur.