Opinion
No. 31424-0-II
Filed: March 8, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Cowlitz County. Docket No. 03-1-01602-8. Judgment or order under review. Date filed: 02/11/2004. Judge signing: Hon. James E. Warme.
Counsel for Appellant(s), John A. Hays, Attorney at Law, 1402 Broadway St, Longview, WA 98632-3714.
Counsel for Respondent(s), Michelle L. Shaffer, Cowlitz Co Pros Attorney Office, 312 SW 1st Ave, Kelso, WA 98626-1799.
John Presley Whitmire appeals a conviction for possession of methamphetamine following a bench trial on stipulated facts. He challenges the trial court's denial of a pretrial motion to suppress evidence, arguing that: (1) the evidence was insufficient to support a finding of fact that he interfered with traffic while backing out of an alley, thereby giving a police officer probable cause to make a traffic stop; and (2) as a matter of law, the officer lacked probable cause to make the stop, which revealed that Whitmire was driving on a suspended license, which in turn led to an allegedly unconstitutional search of Whitmire's vehicle. We affirm.
FACTS
At about 7:00 a.m. on November 8, 2003, Longview Police Officer Trevino, on duty, was driving eastbound on Alabama Street. The suppression hearing finding of fact at issue is No. 2:
Officer Trev[in]o was traveling behind a vehicle that suddenly veered to the left to avoid a maroon Plymouth Breeze, driven by Defendant, that was backing out of an alley onto Alabama Street. Officer Trevino also had to slow his vehicle to avoid colliding with Defendant's vehicle as Defendant again attempted to back out onto Alabama Street from the alley.
Clerk's Papers (CP) at 22.
The trial court entered these additional, unchallenged findings: Although the alley was temporarily obstructed by a truck belonging to a friend of Whitmire's, there was no imminent emergency requiring Whitmire to back out of the alley. After Trevino passed by, Whitmire continued backing into the street and was stopped by Trevino for violating traffic laws. A Longview ordinance (LMC 11.40.030) provides: `No vehicle shall back into an alley. No vehicle shall back out of an alley except when same is obstructed and an emergency is imminent.' CP at 10. RCW 46.61.605(1) prohibits backing a vehicle `unless such movement can be made with safety and without interfering with traffic.' During the stop, Trevino learned that Whitmire's driver's license was suspended. He arrested him for that offense, put him into the patrol car, and searched the car incident to arrest. The officer found methamphetamine in the unlocked glove box.
The trial court denied Whitmire's motion to suppress and entered judgment upon stipulated facts.
ANALYSIS
Whitmire first contends that Finding No. 2 is unsupported by substantial evidence. Trevino testified as follows:
A I was traveling eastbound on Alabama Street and I observed another vehicle eastbound in front of me. I saw the vehicle . . . react by steering to the left and realized that it had reacted to the Plymouth Breeze that Mr. Whitmire was driving because the — Mr. Whitmire's vehicle was backing out onto the street from an alley.
Q Okay. When you say react, could you describe that a little bit more? What did that vehicle in front of you do?
A As it was traveling, I saw it veer to the left.
Q Okay. Out of its lane of travel.
A Yes.
Q Okay. What did you do as a result of that?
A I recognized what caused the action. And then, as I was heading that direction, I slowed down because I realized that that car was still making an effort to back out onto the street.
Q So you had to slow your vehicle to allow Mr. Whitmire to back out of the alley; is that —
A I slowed down and was going to allow him. But I thought — I believed that he had stopped and was going to allow me to go past.
Q Okay. What did you do at that point then?
A Once I had determined that I believed he had come to a stop and was going to let me go by, I started to go past him. And, as I went past him, I saw that he, again, started to move backwards. And I reacted to that.
Q Okay. And how did you react to that?
A I reacted by hitting my brakes and then turning a bit to the left.
Q All right. What did you do after that?
A I — as soon as I got past him, I turned around and I initiated a traffic stop.
Q All right. So, just so I'm clear, you initially slowed. It looked like he was going to let you proceed. And when you began to proceed, he started backing out?
A Then he started to back — his vehicle started to move back again.
Report of Proceedings (RP) at 7-8.
To this point, the testimony clearly supports the finding. But Whitmire contends that this exchange on cross-examination undermines it:
Q And where was Mr. Whitmire's car when you passed the parked cars and got closer?
. . . .
A He was in this area [indicating on drawing]. He was moving backwards, slowly, but somewhere right on the edge of where the sidewalk meets the road.
Q Had he crossed the sidewalk area and got into the lane of travel?
A I wouldn't say he was in the lane of travel. I would say he was in the area of where the cars parked on the street, only you can't park blocking the alley, but he was not yet on to the lane of traffic, no.
Q Did you actually stop when you got to his location?
A No, I slowed down when I got here [indicating on drawing].
Q Slowed down, but continued to go?
A Yes, very slowly.
Q So he never was actually in the lane of travel where you were at?
A He was not. No, he was not.
RP at 22.
Whitmire's brief accurately states the pertinent law: The trial court errs if it enters suppression hearing findings of fact that are not supported by substantial evidence. State v. O'Neill, 148 Wn.2d 564, 571, 62 P.3d 489 (2003). `Substantial evidence,' in the context of a criminal case, means evidence sufficient to persuade `an unprejudiced, thinking mind of the truth of the fact to which the evidence is directed.' State v. Summers, 107 Wn. App. 373, 388, 28 P.3d 780, 43 P.3d 526 (2001) (quoting State v. Hutton, 7 Wn. App. 726, 728, 502 P.2d 1037 (1972)). `A claim of insufficiency of evidence admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom.' State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). In order to preserve the error for review, the defendant must assign error to those findings claimed to be unsupported by substantial evidence. State v. Hill, 123 Wn.2d 641, 870 P.2d 313 (1994).
Here, the evidence is sufficient to support the challenged finding. The trial court found that Whitmire was backing out of an alley onto Alabama Street; that a vehicle ahead of Trevino veered to the left to avoid a collision; and that Trevino `also had to slow his vehicle to avoid colliding with Defendant's vehicle as Defendant again attempted to back out onto Alabama Street from the alley.' CP at 22. There is no question that Whitmire was trying to back out of the alley. The vehicle ahead of Trevino swerved, then Trevino himself slowed. Thinking that Whitmire had stopped, Trevino started again, only to hit his brakes and turn to the left when he saw Whitmire resume backing. That Whitmire did not actually get as far as the lane of travel is immaterial. Any prudent, defensive driver would have slowed and swerved when confronted with a vehicle attempting in this manner to back into the street from an alley. Trevino could not know whether the backing vehicle would keep coming past the curb lane or stop, and he could not chance being wrong. The trial court drew a reasonable inference that Trevino `had to slow his vehicle to avoid colliding with Defendant's vehicle.' CP at 22.
The remaining issue is whether Trevino had probable cause to believe that Whitmire had violated the ordinances concerning backing from an alley. The trial court concluded that Trevino had a lawful basis for the stop. We agree. LMC 11.40.030 provides that `[n]o vehicle shall back out of an alley except when same is obstructed and an emergency is imminent.' CP at 10. Granting that the alley was temporarily obstructed, as Whitmire says, the record does not contain any basis for imputing to Trevino knowledge of an imminent emergency, which would have excused Whitmire's backing, and Whitmire does not argue that any emergency existed.
LMC 11.02.010 also applies. That section adopts chapter 308-330 WAC, the `Washington Model Traffic Ordinance,' which in turn adopts by reference certain sections of the Revised Code of Washington, including RCW 46.61.605: `Limitations on backing. (1) The driver of a vehicle shall not back the same unless such movement can be made with safety and without interfering with other traffic.' Clearly, here, Whitmire's backing interfered with traffic. Two other vehicles had to take evasive action for fear of colliding with his car.
In sum, the officer had probable cause to make the initial traffic stop. State v. Chelly, 94 Wn. App. 254, 259, 970 P.2d 376, review denied, 138 Wn.2d 1009 (1999). Upon learning that Whitmire's license was suspended, probable cause existed to arrest him for misdemeanor violation of former RCW 46.20.342 (2001). State v. Hehman, 90 Wn.2d 45, 47, 578 P.2d 527 (1978). Trevino thereby acquired the right, under both the Fourth Amendment and Washington Constitution article I, section 7, to search Whitmire's vehicle, including the unlocked glove box, incident to arrest. Chelly, 94 Wn. App. at 262-63 (citing New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981), and State v. Stroud, 106 Wn.2d 144, 152, 720 P.2d 436 (1986)); State v. Callahan, 31 Wn. App. 710, 714, 644 P.2d 735 (1982).
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.
HUNT, J. and VAN DEREN, J., Concur.