No. 47828-1-IThe Court of Appeals of Washington, Division One.
Filed: December 17, 2001 UNPUBLISHED OPINION
Appeal from Superior Court of King County Docket No: 008039800 Judgment or order under review Date filed: 11/08/2000
Counsel for Appellant(s), Nielsen Broman Associates Pllc, 810 Third Avenue, 320 Central Building, Seattle, WA 98104.
Eric Broman, Nielsen Broman Assoc. Pllc, 810 3rd Ave Ste 320, Seattle, WA 98104.
Counsel for Respondent(s), Daniel J. Clark, W554, 516 3rd Ave Ste, Seattle, WA 98104.
AGID, C.J.
J.N. appeals his conviction for being a minor in possession of alcohol.[1] He was 17 years old at the time of the incident and the fact-finding hearing. J.N. argues he was unlawfully seized when a police officer pulled over the car in which he was a passenger and ordered him to return to the car when he attempted to leave the scene. J.N. also contends the trial court erred by excluding evidence and testimony relating to a portable breath test (PBT) result that tended to show the absence of alcohol on his breath. Because the police officer in this case was able to articulate an objective rationale predicated on officer safety concerns for seizing J.N., we hold that the seizure was lawful and affirm the trial court’s order denying the CrR 3.6 motion to suppress. We also hold that because J.N. failed to present any evidence establishing the PBT’s scientific reliability, the trial court acted within its discretion in excluding the PBT evidence and testimony.
FACTS
Around 2:00 a.m. on July 11, 2000, City of Kirkland Police Officer Janelle McBride was on routine patrol in a residential neighborhood when she saw a station wagon turn without signaling. The car’s front tabs appeared to be expired and the car seemed to be speeding. As she followed the car, she saw it swerve twice and thought the driver might be intoxicated. She signaled for the car to pull over using her overhead lights, and the car pulled over in front of J.N.’s house. She testified that as she “pulled up behind the vehicle, it appeared there were five or six subjects on board.” Because of the number of people in the car and her unfamiliarity with the area, she called for back-up.
While still in her patrol car, she saw some of the back seat passengers, including J.N., get out of the car. She promptly directed them over the loud speaker to get back in the car. She explained her reasons for ordering them back into the car as follows:
Based on my officer safety concerns, the possibility that the driver had been drinking, there’s no — absolutely officer safety comes first, and my obligation is to make sure that everybody goes home safe. And I requested them to get back into the vehicle until I could investigate the incident further.
The trial court’s findings state that “[o]nce the occupants got back into the station wagon, Officer McBride observed that the occupants were bending over and making furtive movements as if hiding something under the seats of the vehicle.” However, at the hearing, Officer McBride testified that she observed the furtive movements before any of the passengers stepped out of the car.[2] Concerned that weapons might have been in the vehicle, Officer McBride approached with a flashlight. She saw a case of beer in the back of the car within arm’s reach of the back seat passengers. Because the occupants of the car appeared to be under the age of 21, she decided to request identification from each of them. She directed them to roll down the windows, and when they did so she smelled alcohol and marijuana. After checking J.N.’s identification, she discovered he was under 21.
When the back-up officers arrived, Officer McBride ordered all of the passengers to step out of the car and sit on the curb. She then directed each of them to blow in her face. She testified that when J.N. blew in her face she could smell alcohol on his breath. J.N.’s mother noticed police cars in front of her house and came outside where she saw the boys sitting on the sidewalk. After about 30 minutes, she was allowed to speak to J.N. and asked him to blow in her face. She testified that she did not smell alcohol on his breath. The police searched the car and found three empty beer cans. One was on the floor of the car where J.N. was sitting and one was on the seat next to him. Commissioner Kimberley Prochnau presided over a combined fact-finding and CrR 3.6 motion to suppress hearing. The commissioner refused to allow J.N. to cross-examine Officer McBride about a .003 blood alcohol reading she obtained by administering a portable breath test (PBT) to J.N. at the scene. In addition, J.N. was not allowed to call Washington State Trooper Oh, who would have testified that in his experience, a person with a .003 PBT reading would not have the smell of alcohol on his or her breath. The trial court ultimately denied J.N.’s motion to suppress and found him guilty as charged based on his constructive possession of the beer found in the car.
ANALYSIS.
We first address the State’s challenge to the trial court’s written finding that “[o]nce the occupants got back into the station wagon, Officer McBride observed that the occupants were bending over and making furtive movements as if hiding something under the seats of the vehicle.” Although counsel for the State prepared the proposed findings and did not object to this finding at the hearing on the findings, the State now argues that this finding “is not supported by any part of the record.”[3]
The State correctly notes that it need not file a cross-appeal to raise this issue here since it is not seeking affirmative relief or a change in the final result of the trial.[4] However, J.N. argues for the application of the invited error doctrine, which ordinarily “prohibits a party from setting up an error at trial and then complaining of it on appeal.”[5] The doctrine applies where a party took knowing and voluntary actions to set up the error at trial, even if the error is of constitutional magnitude.[6] However, applying the doctrine here is inappropriate because there is no indication the State was aware that the finding was erroneous at the time it was entered. Rather, the error appeared to be inadvertent, as there is no suggestion that the State had “a strategy to set up the error.”[7] Therefore, we proceed to consider the State’s challenge to the trial court’s finding.
When reviewing a trial court’s suppression ruling, we apply the substantial evidence standard to findings of fact.[8] “Substantial evidence exists where there is a sufficient quantity of evidence in the record to persuade a fair-minded, rational person of the truth of the finding.”[9] A review of the record of proceedings reveals no evidence supporting the trial court’s finding that the furtive movements occurred after the passengers were ordered back into the vehicle. Officer McBride was the State’s only witness. At the fact-finding hearing, she testified about the traffic stop as follows:
As I pulled up behind the vehicle, it appeared there were five or six subjects on board, of which I call out, based on the time of night and that I’m by myself in an unfamiliar residential area. And based on my observations, I had some concern. And the passenger started to exit the vehicle. Prior to that, I saw hand movements, gestures, body movements, as if they were attempting to conceal or hide items underneath the seat which is a big officer safety issue. We’re not positive it’s a weapon or what the issues may be.
A few questions later, Officer McBride was asked: “And what was the first thing after the car had stopped and you initiated your extra lighting; what was the first thing you noticed?” McBride replied:
The first thing I noticed was the body movements and the hand gestures. Well, not the hand gestures but the leaning over and body movements as if they were attempting to conceal something underneath the seats.
These portions of McBride’s testimony are the only evidence in the record about the timing of the furtive movements. Contrary to J.N.’s assertions, there is no evidence in the record stating or suggesting that McBride saw the furtive movements after she ordered the passengers back into the car.[10] .
We conclude that the contested finding of fact was not supported by substantial evidence. Accordingly, we are not bound by this finding on review. Was J.N. Unlawfully Seized? J.N. argues the trial court should have granted his motion to suppress because the evidence against him was obtained as a result of an unlawful seizure. Article I, section 7 of the Washington Constitution provides motor vehicle passengers with greater protection against unreasonable police conduct than does the fourth
amendment of the United States Constitution.[11] When an officer has probable cause to make a traffic stop, the officer may order the driver to stay in or exit the car because it “is a de minimis intrusion upon the driver’s privacy under article I, section 7.”[12] However, this bright-line rule does not apply to passengers.
In State v. Mendez,[13] the Washington Supreme Court held that in cases involving car passengers, courts must balance a police officer’s need `to control the scene and ensure his or her own safety’ with `the privacy interests of the passenger, who was not stopped on the basis of probable cause by the police.’[14] Therefore, in order to satisfy article I, section 7, an officer must `be able to articulate an objective rationale predicated specifically on safety concerns, for officers, vehicle occupants, or other citizens, for ordering a passenger to stay in the vehicle or to exit the vehicle . . . .’[15] In determining whether an officer had a sufficient `objective rationale’ for ordering a passenger to remain in the car during a traffic stop, we consider the totality of circumstances surrounding the stop in light of the following non-exclusive factors: `the number of officers, the number of vehicle occupants, the behavior of the occupants, the time of day, the location of the stop, traffic at the scene, affected citizens, or officer knowledge of the occupants.’[16] In Mendez, two police officers stopped a car in Yakima at 12:50 p.m. for failure to stop at a stop sign. As soon as the car pulled over, Mendez, a 16-year-old front seat passenger, got out of the car and began walking away. When the officer told him to get back into the car, “Mendez turned, fumbled with his shirt and reached inside his clothes more than once, and continued walking away. He then ran, even after a subsequent command to return to the vehicle.”[17] The officers chased him down and put him under arrest. The court concluded that Mendez was seized when the officer “first uttered the command for him to get back into the car.”[18] Since Mendez fumbled with his clothes after he was seized, the state could not use his movements to retroactively justify the prior seizure.[19] The court concluded the officers did not meet the `objective rationale’ test stating:
Mendez was already walking away when he was told to stop. The officers were present in this instance in broad daylight in Yakima. No specific safety concerns were present at the scene. They had control of the situation as the driver remained where he was directed. The other passengers remained in the vehicle. Mendez had not committed a crime. Without more, and in view of the officers’ testimony that Mendez did not do anything to make them fearful for their safety except run away, we cannot conclude . . . that “increased police protection” justified the seizure and subsequent arrest of Mendez. . . .[20]
However the court specifically noted that “a stop of a car at night in a more isolated location would be more menacing to a lone officer if all four passengers exited the vehicle on his approach.”[21]
In contrast, Division Three held the “objective rationale” test was met in City of Spokane v. Hays.[22] There, two officers made an arrest for assault at a residential building that “was familiar to police as a gang hangout, [and] known for criminal activity.”[23] The officers saw a person leave the building and get into a car parked at the curb. The car entered traffic without signaling, and the officers pulled it over after following it for several blocks. They saw the driver and the front passenger “manipulating an article of clothing’ on the bench-style seat between them’ and “worried that the garment might conceal a gun.”[24]
When the officers approached the car, Hays, the front seat passenger, locked the car door and refused to comply with the officers’ request that he roll down his window. The officers then seized Hays by ordering him out of the car. The court concluded there was an objective rationale justifying Hays’ seizure based on his `hostile and confrontational’ behavior, the officers’ fear that he was concealing a gun, because the area was “known for crime,” and because one of the passengers had come out of a building that was “particularly notorious for crime and gang activity.”[25] The Hays court held that the officers’ `safety concerns were reasonable and, therefore, tipped the interest balance from Mr. Hays’ privacy to officer and public safety.’[26]
Although the facts of this case fall somewhere in between the scenarios presented in Mendez and Hays, we conclude that in light of the factors articulated by the Mendez court, Officer McBride had an `objective rationale’ predicated on officer safety concerns for ordering J.N. to remain in the car. Unlike the officers in Mendez, Officer McBride was alone in an unfamiliar area at 2:00 a.m. facing a vehicle containing five or six passengers. In Mendez, only one passenger left the car, but here J.N. got out of the car along with one or two other passengers, making it more difficult for McBride to keep track of the situation. And, as in Hays, the occupants of the car in this case made furtive movements before J.N. was seized.[27] Officer McBride testified she was concerned that the passengers might be trying to conceal a weapon under the seat. The furtive movements raised a valid officer safety concern and are a rational basis for justifying J.N.’s seizure. We conclude that under Mendez, J.N. was not unlawfully seized when Officer McBride ordered him to return to the car. Accordingly, we affirm the trial court’s order denying the CrR 3.6 motion to suppress.
Was the PBT Evidence Wrongfully Excluded?
J.N. next argues he was deprived of his constitutional right to confront and cross-examine adverse witnesses when the trial court excluded evidence and testimony relating to the PBT he took at the time of the incident. The trial court has discretion to determine both the admissibility of evidence and the scope of cross examination,[28] and we will not reverse the trial court’s ruling absent an abuse of discretion.[29] J.N. sought to impeach Officer McBride’s testimony that she smelled alcohol on his breath by introducing evidence that he blew a .003, a very low reading, on the PBT at the scene of the incident. J.N. also sought to introduce the testimony of Washington State Trooper Oh, who would have stated that in his experience a PBT reading of .003 is inconsistent with the smell of liquor on the breath. In State v. Smith, the Washington Supreme Court held that results garnered from PBTs are `inadmissible for any purpose’ absent `a Frye hearing on the PBT, or specific approval of the device and its administration by the state toxicologist.’[30] Relying on Smith, Commissioner Prochnau determined the PBT evidence was inadmissible because it `did not meet the Frye standard,’ which requires that scientific evidence be generally accepted within the scientific community.[31] The issue here is whether the application of Smith’s blanket exclusion of PBT evidence absent a Frye hearing or state toxicologist approval violated J.N.’s constitutional rights to confront witnesses and present evidence in his own defense. Because J.N. offered no evidence establishing the reliability of the PBT, we find no constitutional error and conclude that the trial court acted within its discretion in excluding the PBT evidence. Both the U.S. and Washington Constitutions guarantee criminal defendants the right to present evidence in their own defense and the right to confront and cross-examine adverse witnesses.[32] This right to confrontation is, however, subject to two limitations: (1) the evidence sought to be admitted must be relevant; and (2) the defendant’s right to introduce relevant evidence must be balanced against the State’s interest in precluding evidence so prejudicial as to disrupt the fairness of the fact-finding process.[33] Under the second exception, the state’s interest in precluding the introduction of relevant evidence must be “compelling” in order to satisfy the requirements of the Sixth Amendment and Const. art. I, sec. 22.[34]
In State v. Hudlow,[35] the Washington Supreme Court held that application of the “rape shield” statute, which restricts the admissibility of evidence relating to a rape victim’s past sexual behavior, did not violate a defendant’s rights under the Sixth Amendment or Const. art. I, sec. 22. The court adopted a “compelling state interest” test for cases where a court ruling is challenged as an undue restriction on a defendant’s right to confrontation.[36] The Hudlow court reasoned that the State’s interest in applying the rape shield statute was “compelling enough to permit the trial court to exclude minimally relevant prior sexual history evidence if the introduction of such evidence would prejudice the truth-finding function of the trial.”[37]
However, the court noted that “[a]s to evidence of high probative value, . . . it appears that no state interest can be compelling enough to preclude its introduction consistent with the Sixth Amendment and Const. art. I, sec. 22.”[38] In State v. Ellison,[39] this court held that the exclusion of polygraph evidence favorable to a defendant did not violate the defendant’s rights under the confrontation clause.[40] The defendant in Ellison sought to introduce polygraph results in order to impeach the testimony of a key State witness, arguing that “the admission of such evidence for impeachment purposes is required by the confrontation clause . . . .”[41] Noting that `nothing in [the] record demonstrates the reliability of polygraph tests generally or of [the witness’ test] in particular,’ we affirmed the trial court’s exclusion of the evidence.[42] Federal courts have reached similar conclusions. For example, in United States v. Scheffer,[43] the U.S. Supreme Court upheld Military Rule of Evidence 707, which makes polygraph evidence per se inadmissible in court-martial proceedings. The Scheffer court recognized that a defendant’s interest in presenting relevant evidence was “subject to reasonable restrictions”[44] and in some cases must “bow to accommodate other legitimate interests in the criminal trial process.”[45] The court noted that:
state and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials. Such rules do not abridge an accused’s right to present a defense so long as they are not “arbitrary” or “disproportionate to the purposes they are designed to serve.” . . .[46]
The Scheffer court concluded that the government had `legitimate interests’ in `ensuring that only reliable evidence is introduced at trial, preserving the court members’ role in determining credibility, and avoiding litigation that is collateral to the primary purpose of the trial.’[47] Therefore, the court held that the evidentiary rule did “not unconstitutionally abridge the right to present a defense.”[48]
But in Patrick v. State,[49] the Supreme Court of Arkansas held that the trial court’s refusal to allow the defendant to present PBT evidence in his defense was a denial of due process of law in violation of the United States Constitution. Patrick was charged with driving while intoxicated, but he was not given a breathalyzer test because there was not a certified machine in the county.[50] The arresting officers did give him a PBT test, which came back negative.[51] Before trial, the State moved to prevent any reference to the PBT or its results. In response, Patrick called a breathalyzer expert who testified that PBTs are “generally accepted as reliable in detecting the presence or absence of alcohol, although not the exact quantity.”[52] The expert also testified that “the chances of a negative reading being wrong were 1 in 10,000.”[53] The trial court nevertheless excluded the PBT evidence because an Arkansas statute required test instruments to be certified by the Arkansas State Board of Health in order for the results to be admissible at trial.[54] On appeal, the Arkansas Supreme Court, relying on the expert’s pre-trial testimony, held that the trial court should have admitted the PBT evidence Patrick sought to introduce because `the evidence [was] exculpatory, was crucial to the defense, and [was] sufficiently reliable to warrant admission.’[55] Under the constitutional analysis set forth in Hudlow, we first consider whether the PBT evidence J.N. sought to admit at the hearing was relevant.[56]
Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”[57]
J.N. argues the PBT evidence was relevant because the extremely low PBT reading, along with Trooper Oh’s testimony, tends to make it “less probable that McBride smelled intoxicants on [J.N.]’s breath.” Conversely, the State contends the PBT evidence J.N. offered was not relevant because J.N. `did not establish the scientific reliability of the PBT.’ The relevance of the PBT evidence in this case depends, at least in part, on the reliability of the evidence. Because there is no evidence in this record about the PBT’s reliability, we decline to decide the relevance issue here. Even assuming that the PBT evidence in this case was relevant, we hold that because J.N. made no showing of the PBT’s reliability, the State’s interest in preventing the introduction of unreliable evidence at trial was sufficiently compelling to justify excluding the evidence in this case. J.N. urges the panel to follow the Arkansas Supreme Court’s holding in Patrick and conclude that the PBT evidence should have been admitted for impeachment purposes. However, this case is distinguishable from Patrick because J.N. did not present any evidence to show that his PBT result was scientifically reliable. J.N. offered no evidence showing that the PBT machine used by Officer McBride was accurate or consistent.[58] Therefore, the probative value of the PBT evidence is necessarily slight in this case.[59] As the Supreme Court noted in Scheffer, the state “unquestionably ha[s] a legitimate interest in ensuring that reliable evidence is presented to the trier of fact in a criminal trial.”[60] If criminal defendants were allowed to present any scientific evidence, no matter how unreliable, in their defense, the “fairness of the fact finding process” would be severely undermined.[61] We conclude that the State’s interest in preventing the admission of unreliable evidence in a criminal trial is sufficiently compelling to permit a trial court to exclude PBT evidence that has not been shown to be scientifically reliable.[62] The trial court did not violate J.N.’s rights under the Sixth Amendment and Washington Const. art. I, sec. 22 when it excluded the evidence and testimony relating to the PBT result.
The trial court acted within its discretion in excluding the evidence.
Affirmed.
BAKER and ELLINGTON
(2001) (internal quotations omitted).
(1984).