Opinion
No. 62142-4-I.
April 27, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-1-08126-3, Julie A. Spector, J., entered August 7, 2008.
Affirmed by unpublished opinion per Schindler, C.J., concurred in by Cox and Ellington, JJ.
Roger Sinclair Wright appeals his convictions of possession of methylenedioxymethamphetamine and possession of marijuana with intent to distribute. Wright contends that the trial court erred in denying his motion to suppress the evidence obtained following a traffic stop. We reject Wright's argument that the police officer did not have adequate justification to stop him for an apparent traffic infraction. We also reject Wright's alternative argument that the traffic stop was a pretext for an unlawful search in violation of article 1, section 7 of the Washington State Constitution, and affirm.
FACTS
Seattle Police Officer Christopher Gregorio's primary duties as patrol officer, are to enforce the traffic laws and respond to 911 calls. At approximately 4:45 p.m. on November 29, 2006, Officer Gregorio was driving northbound on Waters Avenue South in Seattle. It was dark outside and the weather was cold and icy. At the intersection of Waters Avenue South and South Roxbury Street, the Officer saw a green Lexus driving without its headlights on. As the Lexus began to make a right turn heading toward Officer Gregorio's patrol car, the driver of the Lexus abruptly stopped, backed up, and proceeded to turn left heading in the opposite direction. Officer Gregorio waited a few seconds to allow the driver to turn on the headlights. When the driver did not, the Officer activated his emergency lights and pulled the car over. Officer Gregorio testified that he typically stops vehicles for driving without the headlights on, but he rarely cites the drivers for this infraction and instead issues a warning.
Before approaching the car, Officer Gregorio called for backup because of a "suspicious vehicle stop." When Officer Gregorio asked the driver for his license, registration, and proof of insurance, the Officer said that he detected the very strong odor of marijuana coming from the interior of the car. Wright told Officer Gregorio that he thought he was stopped because he did not have the headlights on and was illegally backing around his father's house.
The police arrested Wright for possession of marijuana. After waiving his Miranda rights, Wright admitted he had smoked marijuana. In a search incident to arrest, the police found several baggies of suspected marijuana, cash, and a set of scales. After obtaining a search warrant, the police searched the trunk of the car and found a bag containing a sizable amount of methylenedioxymethamphetamine (a/k/a ecstasy). The State charged Wright with one count of possession with intent to deliver MDMA and one count of possession with intent to deliver marijuana.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Wright filed a motion to suppress the statements he made after he was arrested and the drugs. Wright argued that there was not a constitutionally sufficient basis for the stop and the stop for an alleged traffic infraction was a pretext. Officer Gregorio was the only witness who testified at the CrR 3.6 hearing. The Officer described the reasons why he stopped Wright and that "he could not see inside the vehicle prior to the stop."
The trial court denied the motion to suppress. The court ruled that Officer Gregorio had reasonable suspicion to stop Wright for a traffic infraction. The trial court also ruled that based on the totality of the circumstances, considering the intent and the reasonableness of the officer's behavior, the stop was not a pretext. The court entered extensive findings of fact and conclusions of law in support of the decision denying Wright's motion to suppress.
Wright waived his right to a jury trial. The trial court convicted Wright of the lesser included offense of possession of MDMA and possession with intent to deliver marijuana. Wright appeals.
ANALYSIS
We review the trial court's findings of fact for substantial evidence and the conclusions of law de novo. State v. Carter, 151 Wn.2d 118, 125, 85 P.3d 887 (2004). As the 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 will not disturb credibility determinations on appeal. Camarillo, 115 Wn.2d at 71. Unchallenged findings are verities on appeal. State v. O'Neill, 148 Wn.2d 564, 571, 62 P.3d 489 (2003). Where, as here, if the findings of fact are not challenged, we review de novo whether the findings support the trial court's conclusions of law. State v. Armenta, 134 Wn.2d 1, 9, 948 P.2d 1280 (1997).
Wright claims the trial court erred in ruling Officer Gregorio's decision to stop the car did not violate his constitutional rights because the offender had insufficient justification to stop the car.
Wright does not challenge the constitutionality of either his arrest or the search of his car incident to arrest.
Warrantless searches and seizures violate the Fourth Amendment of the United States Constitution and article 1, section 7 of the Washington Constitution and are presumptively unreasonable unless they fall within an exception to the warrant requirement. State v. Gocken, 71 Wn. App. 267, 274, 857 P.2d 1074 (1993). An investigative Terry stop is an exception to the warrant requirement. State v. Rife, 133 Wn.2d 140, 150-51, 943 P.2d 266 (1997). To justify an investigative stop under the Terry exception, a police officer must have "specific and articulable facts which, taken together with rationale inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio, 392 U.S. at 21. In evaluating the reasonableness of such a stop, a court must look to the totality of the circumstances known to the officer at the time of the stop. State v. Glover, 116 Wn.2d 509, 514, 806 P.2d 760 (1991). Officers may do far more if the conduct of the person detained endangers life or personal safety than if it does not. See State v. McCord, 19 Wn. App. 250, 253, 576 P.2d 892 (1978).
The Fourth Amendment, made applicable to the states through the Fourteenth Amendment, provides that "[[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." Article 1, section 7 of the Washington Constitution provides similar privacy protections, with a broader reach than the Fourth Amendment, as it "clearly recognizes an individual's right to privacy with no express limitations" and places greater emphasis on privacy. State v. Ladson, 138 Wn.2d 343, 248, 979 P.2d 833 (1999) (quoting State v. Young, 123 Wn.2d 173, 180, 867 P.2d 593 (1994).
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
Because the sun had set less than 30 minutes before the stop, Wright argues Officer Gregorio did not have a valid basis to stop him under RCW 46.37.020. Consequently, Wright asserts that the evidence obtained from the stop should have been suppressed.
The sun set at 4:21 p.m. on November 29, 2006, 24 minutes before Wright's vehicle was stopped.
Our courts have applied the Terry stop exception under the Fourth Amendment and article 1, section 7 of the Washington State Constitution to stops incident to traffic infractions. State v. Duncan, 146 Wn.2d 166, 174-75, 43 P.3d 513 (2002). To be lawful, a traffic stop is a seizure and must be justified at its inception. State v. Tijerina, 61 Wn. App. 626, 628-29, 811 P.2d 241 (1991). Police may conduct a warrantless traffic stop if the officer has a reasonable and articulable suspicion that a traffic violation has occurred or is occurring. State v. Ladson, 138 Wn.2d 343, 349, 979 P.2d 833 (1999). And while Wright cites a number of recent decisions by the Washington Supreme Court that clearly reaffirm its position that article 1, section 7 of our state constitution provides greater protection than the Fourth Amendment, none of those cases stand for the proposition that police cannot legally stop a motor vehicle for a traffic infraction. See State v. Day, 161 Wn.2d 889, 895, 168 P.3d 1265 (2007) (acknowledging Terry rationale has been extended to traffic infractions).
The statute Wright relies on, RCW 46.37.020, provides that:
Every vehicle upon a highway within this state at any time from a half hour after sunset to a half hour before sunrise and at any other time when, due to insufficient light or unfavorable atmospheric conditions, persons and vehicles on the highway are not clearly discernable at a distance of one thousand feet ahead shall display lighted headlights, other lights, and illuminating devices as hereinafter respectively required for different classes of vehicles, subject to exceptions with respect to parked vehicles, and such stop lights, turn signals, and other signaling devices shall be lighted as prescribed for the use of such devices.
Wright cites on RCW 46.37.020 in an attempt to negate the lawfulness of the traffic stop because the statute did not require him to have the headlights on. However, the question is not whether Wright actually violated the traffic code, but rather, whether the facts and circumstances warranted the stop. The reasonableness of a stop under Terry does not require evidence sufficient to find the defendant guilty of the traffic infraction. The undisputed evidence in this case shows that it was dark, the weather was cold and icy, and Wright was driving without the headlights on. Under these circumstances, it was reasonable for the Officer to believe Wright had committed a traffic infraction by driving without headlights. Even Wright admitted that he thought he had been stopped because he did not have his headlights on. Given the totality of the circumstances, Officer Gregorio was justified in making the traffic stop under Terry. See also Duncan, 146 Wn.2d at 175.
Alternatively, Wright argues that the traffic stop was a pretext for an unlawful search. A pretextual traffic stop occurs when an officer stops a vehicle, not to enforce the traffic code, but rather to conduct an investigation unrelated to driving. Ladson, 138 Wn.2d at 349-51. Pretext 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). A warrantless traffic stop based on mere pretext violates article I section, 7 of the Washington State Constitution because it does not fall within any exception to the warrant requirement and therefore lacks the authority of law necessary to intrude upon a citizen's privacy interests. Ladson, 138 Wn.2d at 358.
In Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996), the United States Supreme Court held that a traffic stop does not violate the Fourth Amendment when police officers use an observed traffic violation as "pretext" for stopping a vehicle.
To determine whether a stop is pretexual, the totality of the circumstances must be considered, including the subjective intent of the officer and the objective reasonableness of the officer's conduct. Ladson, 138 Wn.2d at 358-59. If the court finds the stop is pretextual, all subsequently evidence obtained from the stop must be suppressed. Ladson, 138 Wn.2d at 359.
Wright focuses on Officer Gregorio's possible motivation for initiating the traffic stop. Noting that Officer Gregorio called for backup due to a "suspicious vehicle stop" and that he testified that the area where the stop occurred was known for car prowl and vehicle thefts, Wright argues that the real reason for the stop was to investigate a suspicion of criminal conduct, not to enforce the traffic code. But "patrol officers whose suspicions have been aroused may still enforce the traffic code, so long as the enforcement of the traffic code is the actual reason for the stop." State v. Hoang, 101 Wn. App. 732, 742, 6 P.3d 602 (2000). A stop is a pretext only "when an officer stops a vehicle in order to conduct a speculative criminal investigation unrelated to the driving, and not for the purpose of enforcing the traffic code." State v. Nichols, 161 Wn.2d 1, 8, 162 P.3d 1122 (2007).
The undisputed facts establish that it was cold, dark and icy outside. Officer Gregorio initiated the stop based on his observation that the car was driving with its headlights turned off. And unlike the cases cited by Wright, the undisputed facts show that Officer Gregorio had virtually no opportunity to form an ulterior motive for stopping the car. His suspicions were tied directly to the traffic infraction that served as the basis for the stop. Wright also asserts that the reason for the stop was because he was a "young African American" and "driving a late model Lexus." But according to the undisputed facts, Officer Gregorio could not see inside the vehicle prior to initiating the stop. On this record, we conclude that Wright was stopped for having committed an apparent traffic violation, not for purposes of conducting some unrelated criminal investigation.
Because the motion to suppress was properly denied, we affirm.
WE CONCUR.