Opinion
No. 26767-9-III.
December 4, 2008.
Appeal from a judgment of the Superior Court for Grant County, No. 07-1-00686-1, Kenneth L. Jorgensen, J., entered December 18, 2007.
Remanded with instructions by unpublished opinion per Sweeney, J., concurred in by Schultheis, C.J., and Korsmo, J.
Washington state outlaws pretextual stops by police. The police cannot stop a car ostensibly for a traffic code violation when the true motive is to investigate some other crime. The inquiry into whether a stop is pretextual requires that the court consider both the objective circumstances surrounding the officer's stop and his or her subjective motivation in effecting the stop. Both are fact intensive inquiries, so we defer to the trial judge as the finder of those facts. The trial court decided the question of whether the stop here was pretextual on documents. The officer did not testify. And we are unable to pass on the question of whether the stop was pretextual because there are no findings that directly address the officer's motive or the circumstances surrounding the stop. We, accordingly, cannot decide the question on this record and remand for a hearing, including testimony from the officer.
FACTS
Moses Lake Police Officer Juan Rodriguez was on patrol just before midnight on December 4, 2006. He drove up behind Joel Wright's car as Mr. Wright approached an intersection. Officer Rodriguez saw Mr. Wright come to a full stop at a stop sign, activate his blinker, and turn right. Officer Rodriguez stopped Mr. Wright for failing to signal at least 100 feet before turning.
Mr. Wright's license was suspended. Officer Rodriguez arrested Mr. Wright and searched the car incident to the arrest for driving with a suspended license. He found cocaine under the driver's seat. Officer Rodriguez arrested Mr. Wright for drug possession. The State charged Mr. Wright with possession of cocaine and driving with license suspended in the third degree.
The State and Mr. Wright stipulated to the facts set out in a statement of probable cause. The trial court held a suppression hearing based on these stipulated facts in February 2007. The court granted the motion to suppress and dismissed the charges on March 6, and it entered findings and conclusions to support its order on June 11. The State filed a new information against Mr. Wright on November 9, 2007; again it charged Mr. Wright with possession of cocaine and driving with license suspended in the third degree. The court vacated its prior findings and conclusions because they were prepared ex parte and entered several months after dismissal. The parties again stipulated to the facts in the statement of probable cause.
The court again suppressed the evidence and dismissed the case against Mr. Wright, and it entered findings of fact and conclusions of law.
The court denied the State's motion for reconsideration, and the State appealed.
DISCUSSION
The disposition of this appeal turns on Officer Rodriguez's motive for stopping Mr. Wright. See State v. Ladson, 138 Wn.2d 343, 353, 979 P.2d 833 (1999). And that question turns on both the objective circumstances surrounding the stop and the officer's subjective motivation. Id. at 358-59. Here, the officer did not testify and, accordingly, the trial court was not in a position to evaluate the criteria essential to a Ladson challenge. See State v. DeSantiago, 97 Wn. App. 446, 452, 983 P.2d 1173 (1999) (finding a pretextual stop where officer testified he was looking for a reason to stop defendant's vehicle); State v. Myers, 117 Wn. App. 93, 95-97, 69 P.3d 367 (2003) (finding pretextual stop where officer testified he followed defendant's car because he suspected defendant was driving with a suspended license). The question is not whether the actual citation is de minimis. That inquiry is not relevant. The question is what was the officer's true motive for the stop. Ladson, 138 Wn.2d at 358-59. And, on this record, that question has not been answered.
Warrantless searches and seizures are, as a general rule, unreasonable. Id. at 349. And pretextual traffic stops are illegal in this state. Id. at 351. It does not make any difference that the announced reason for the stop may be legal; the question is whether the announced reason (here a traffic stop) was the real reason for the stop. Pretextual traffic stops do not violate the Fourth Amendment of the United States Constitution. Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769, 1774-76, 135 L. Ed. 2d 89 (1996). They do, however, violate the Washington State Constitution's article I, section 7; it provides broader privacy protection than the Fourth Amendment. Ladson, 138 Wn.2d at 348.
Ladson requires that the trial court consider the "totality of the circumstances." Id. at 358-59. The Ladson court specifically held that courts passing on whether a stop was pretextual should consider both "the subjective intent of the officer as well as the objective reasonableness of the officer's behavior." Id. The inquiry is not limited to objective factors alone. Id. "Whether a vehicle stop is pretextual is a factually nuanced question." State v. Meckelson, 133 Wn. App. 431, 436, 135 P.3d 991 (2006), review denied, 159 Wn.2d 1013 (2007). Subjective motivations are important but not dispositive. See State v. Montes-Malindas, 144 Wn. App. 254, 260-61, 182 P.3d 999 (2008). The State must show that the officer's motivation in making the stop was to enforce the traffic code and not to discover evidence of crimes. Id. at 259-60.
Here, the court concluded that the traffic violation was so "de minimis" as to amount to a pretext. Clerk's Papers (CP) at 32. That is not the test. See Ladson, 138 Wn.2d at 359. And, moreover, the record here does little to show the context in which the stop occurred, unlike other published cases. There are no factual findings here one way or the other as to whether Officer Rodriguez recognized Mr. Wright, whether Mr. Wright otherwise raised Officer Rodriguez's suspicion, or whether there were other cars at the intersection that would have been endangered by Mr. Wright's delayed use of his turning signal.
See State v. Michaels, 60 Wn.2d 638, 639-40, 374 P.2d 989 (1962) (finding a pretextual arrest when the officers arrested the defendant for a traffic violation after they had been alerted to look for defendant's car); Ladson, 138 Wn.2d at 345-46 (finding a pretextual stop when detectives were on gang patrol, recognized the driver as a reputed drug dealer, and tailed the car for several blocks before stopping the driver for having license plate tags expired by only five days); Montes-Malindas, 144 Wn. App. at 257-58 (finding a pretextual arrest when the officer observed the van's occupants behaving suspiciously in a parking lot, moved his patrol car to another parking lot to further observe, and briefly tailed the van before pulling it over for failure to illuminate the headlights, summoning backup, and approaching the van on the passenger side to speak with the passengers first).
The factual findings here are not helpful even were we to consider them despite the lack of any testimony by the officer. The court concluded in finding of fact 6 that: "Officer Rodriguez believed that Mr. Wright violated RCW 46.61.305 because Mr. Wright failed to signal continuously for one hundred (100) feet before turning." CP at 32. Again, whether Officer Rodriquez believed that Mr. Wright violated RCW 46.61.305 is not the question. The question is what was the officer's real motivation for the stop, considering both the objective circumstances surrounding the stop and the officer's subjective motivation. Ladson, 138 Wn.2d at 358-59.
We then remand the case for a hearing, including testimony by the officer, and entry of appropriate findings of fact on the question of the officer's motive in effecting the stop here. Meckelson, 133 Wn. App. at 436.
A majority of the panel has determined that 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.
SCHULTHEIS, C.J. and KORSMO, J., concur.