No. 25750-5-II.The Court of Appeals of Washington, Division Two.
Filed: October 12, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Pierce County, No. 99-1-04402-1, Hon. Marywave Van Deren, February 25, 2000, Judgment or order under review.
Counsel for Appellant(s), Stephanie C. Cunningham, Attorney At Law, Pmb 304 2522 N.PROCTOR St, Tacoma, WA 98406-5338.
Counsel for Respondent(s), John C. Hillman, Pierce County Deputy Pros Attny, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402.
KAREN G. SEINFELD, J.
Andre Miller appeals his conviction for unlawful possession of a controlled substance with intent to deliver. He argues the trial court erred (1) in admitting drug evidence; (2) in finding sufficient evidence of his intent to deliver; and (3) in finding that he was not eligible for a Drug Offender Sentencing Alternative (DOSA) sentence. Finding no error, we affirm.
FACTS
In October 1999, a citizen informed Tacoma Police Officer Daniel Hensley that he had seen Miller carrying a bag of rock cocaine. The citizen gave Hensley a description of Miller and his car, including the license plate number.
Based on this information, Hensley performed a background check that revealed Miller’s history of drug-related crimes and a suspended driver’s license. Hensley then looked for Miller and informed other officers about Miller’s criminal background and suspended license.
The next day, while Hensley and Officer William Muse were responding to a 911 call, they observed a car that appeared to be Miller’s; the car executed an illegal U-turn and parked. The passenger and the driver, who fit Miller’s description, exited the car and started to walk away. After verifying that the driver was Miller, the officers arrested him for driving with a suspended license and conducted a pat-down search. They discovered (1) a baggie containing 52 pieces of rock cocaine weighing approximately 6 grams, (2) a small amount of methamphetamine, (3) $1,300 in neatly folded smaller bills, (4) $5.37 in a separate pocket, (5) a cellular phone, (6) a pager, (7) cigarettes, and (8) two to four cigarette lighters.
The officers did not find any drug paraphernalia or arrest or search the passenger.
The State charged Miller with driving with a suspended license in the third degree, unlawful possession of a controlled substance (methamphetamine), and unlawful possession of a controlled substance with intent to deliver (cocaine). Miller moved to suppress the drug evidence, arguing that the search was invalid because the stop and arrest were pretextual. After hearing testimony from the officers, the trial court found that the stop was not pretextual. Miller pleaded guilty to driving with a suspended license. He waived his right to a jury trial and proceeded to a bench trial on the drug charges.
At trial, the officers testified that the amount of cocaine they found on Miller and its method of packaging was similar to the amount and packaging usually found on drug dealers, that it would be unusual to find this amount of cocaine on a mere user, and that they usually discover drug paraphernalia on drug users but not on drug dealers. According to the officers, Miller did not appear to be under the influence of drugs when they arrested him. The officers further testified that drug dealers frequently used cellular phones and pagers to facilitate their drug deals and often carry similar amounts of cash segregated from their personal money.
Miller testified that the drugs were for his own personal use, that he had a drug addiction, and that he required a large amount of drugs to get high because of his size. He stated that he sometimes used as many as 30 rocks of cocaine in one day. He also alleged that his passenger had been carrying most of the drug paraphernalia and that he had intended to use the cigarette lighters he was carrying to ingest the drugs. Miller further testified that the cash was what remained from the sale of a car and his recent paycheck after he purchased the drugs.
The trial court found Miller guilty on the two drug charges. It found intent to deliver based on (1) the amount of drugs, (2) the amount and denominations of the cash, (3) Miller’s segregation of the large sum of money from his other money, (4) the presence of a cellular phone and a pager, (5) the absence of evidence that Miller was under the influence of drugs at the time of the arrest, and (6) a finding that Miller’s testimony was not credible.
Miller asked to be sentenced under DOSA. The State argued that Miller was not eligible for DOSA because he had possessed more than a `small quantity’ of drugs. Additionally, a presentence investigation report indicated that Miller did not have a significant drug addiction.
The trial court denied Miller’s request for a DOSA sentence, finding that he did not possess a small quantity of drugs and that there was no indication he was using drugs. Instead, it sentenced Miller to 77 months for possession with intent to deliver.
DISCUSSION I. Pretext
Miller contends that the trial court erred in denying his motion to suppress the drug evidence. Relying on State v. Ladson, 138 Wn.2d 343, 979 P.2d 833 (1999), Miller contends that the stop and arrest were pretextual and thus the pat-down search and discovery of the drugs were unconstitutional.
We review a trial court’s findings of fact from a CrR 3.6 suppression hearing to determine whether substantial evidence supports them; we then determine whether these findings support the trial court’s legal conclusions. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). Substantial evidence exists where, viewing the evidence in the light most favorable to the State, there is `a sufficient quantity of evidence in the record to persuade a fair-minded, rational person of the truth of the finding.’ Hill, 123 Wn.2d at 644; State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
A warrantless search subsequent to a pretextual traffic stop violates article I, section 7 of our state constitution. Ladson, 138 Wn.2d at 345, 358. A pretextual traffic stop is a stop for the purpose of circumventing the warrant requirement and facilitating investigation of some other matter rather than to enforce the traffic code. Ladson, 138 Wn.2d at 349; State v. Davis, 35 Wn. App. 724, 727, 669 P.2d 900 (1983). `When determining whether a given stop is pretextual, the court should consider the totality of the circumstances, including both the subjective intent of the officer as well as the objective reasonableness of the officer’s behavior.’ Ladson, 138 Wn.2d at 358-59. Here, the circumstances show that the arrest and subsequent search were not pretextual.
Objectively, the officers’ stop and subsequent search of Miller were reasonable. The officers were aware that Miller had a suspended license and they personally observed him driving. They were legally authorized to arrest him for driving with a suspended license and to conduct a search incident to the arrest to secure their safety. RCW 10.31.100(3)(e);[1]
State v. Michaels, 60 Wn.2d 638, 642-43, 374 P.2d 989 (1962). The officers behaved reasonably in these circumstances.
In regard to the officers’ subjective intent, the record contains no indication that they arrested Miller for the sole purpose of searching for drugs. Hensley testified that he would have arrested Miller on the driving charge regardless of whether he suspected that Miller had drugs.
Miller argues that the stop and arrest were pretextual because Hensley `electronically `tailed” Miller by discovering that Miller’s license was suspended while he was investigating a report that Miller had a bag of drugs. But under these circumstances, an officer may run a background or license check and may act on that information if the officer observes a related violation. Under Ladson, officers who suspect an individual of committing non-traffic crimes may enforce the traffic code if enforcement of the traffic code is the actual reason for the stop. They may not, however, use their authority to enforce the traffic code as a pretext to avoid the warrant requirement for an unrelated criminal investigation. State v. Hoang, 101 Wn. App. 732, 742, 6 P.3d 602 (2000), review denied, 142 Wn.2d 1027 (2001).
This case is distinguishable from other cases where the courts have found pretext. In Ladson, two police officers on `proactive gang patrol’ testified that they selectively enforced traffic violations for the purpose of intelligence gathering and that they had tailed the vehicle in which Ladson was a passenger `looking for a legal justification to stop the car’ after they had been informed he might have drugs. 138 Wn.2d at 346. The officers eventually pulled the car over for expired tags, a non-arrestable offense. Ladson, 138 Wn.2d at 346.
The officers in Ladson did not deny that the stop was a pretext; they testified that they did not make routine traffic stops while on gang patrol but routinely followed suspicious people in hopes that they would commit a traffic infraction. 138 Wn.2d at 346. They then used the traffic infractions as a pretext for pulling them over to investigate unrelated criminal activity. The Supreme Court ruled that this stop was pretextual and suppressed the evidence. Ladson, 138 Wn.2d at 358.
In State v. DeSantiago, 97 Wn. App. 446, 448-49, 983 P.2d 1173
(1999), a police officer followed a car it had observed in a known drug area because he suspected that the driver had purchased drugs and he wanted an excuse to stop the car to investigate his suspicions. The court found that the stop was pretextual and suppressed the drug evidence because the officer was not on routine traffic patrol when he followed the defendant’s vehicle and he followed the vehicle solely to find an excuse to stop the vehicle and conduct a narcotics investigation. DeSantiago, 97 Wn. App. at 452-53. Unlike the officers in Ladson or DeSantiago, the officers here did not follow Miller waiting for him to commit a traffic violation to facilitate a narcotics investigation. Nor did the officers testify that they selectively enforced traffic regulations to facilitate their investigations of other potential crimes. Rather, Hensley testified that traffic enforcement was part of his regular duties and that he would have arrested Miller for driving with a suspended license regardless of his suspicion that Miller was carrying drugs. Neither officer testified that they arrested Miller solely to search him for drugs.
The officers were aware that Miller’s license was suspended before they observed him driving, and the State charged Miller with driving with a suspended license. Thus, the trial court did not err when it found that the stop was not pretextual.
II. Sufficiency of the Evidence: Intent to Deliver
Miller next argues that the evidence was insufficient to establish that he intended to deliver the drugs. We disagree.
We review a claim of insufficient evidence by viewing the evidence in the light most favorable to the State and asking whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Salinas, 119 Wn.2d at 201; State v. Rempel, 114 Wn.2d 77, 82-83, 785 P.2d 1134 (1990); State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). Circumstantial and direct evidence are equally reliable. Delmarter, 94 Wn.2d at 638. We do not review credibility determinations on appeal. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
The State had to prove that Miller possessed the cocaine with intent to deliver. RCW 69.50.401(a); State v. Hagler, 74 Wn. App. 232, 235, 872 P.2d 85 (1994). The trial court could not infer intent to deliver solely from Miller’s possession of the drugs; it needed some additional corroborating evidence of intent to deliver. State v. Brown, 68 Wn. App. 480, 483-84, 843 P.2d 1098 (1993).
The trial court found that the following evidence established intent to deliver: (1) the amount of drugs in Miller’s possession; (2) the amount and denominations of the cash in Miller’s possession; (3) Miller’s segregation of the $1,300 from the rest of his cash; (4) the presence of a cellular phone and pager; and (5) the lack of evidence that Miller was under the influence of drugs at the time of his arrest. The possession of a large amount of cash in addition to possession of drugs may be sufficient to establish intent to deliver. State v. Lopez, 79 Wn. App. 755, 769, 904 P.2d 1179 (1995); Hagler, 74 Wn. App. at 236. Additionally, the trial court found Miller’s testimony about his drug use and the source of the $1,300 not credible. The record, viewed in the light most favorable to the State, supports these findings. Thus, the evidence was sufficient to support the trial court’s finding of intent to deliver.
III. DOSA Eligibility
Finally, Miller challenges the trial court’s finding that he was ineligible for sentencing under DOSA because he possessed more than a `small quantity’ of drugs. The State argues that RCW 9.94A.210 precludes Miller from appealing this finding.
The trial court found that Miller was ineligible for DOSA for two reasons: (1) because Miller possessed more than a small quantity of drugs, and (2) because there was `no indication that he was using.’ Report of Proceedings at 243. As Miller fails to challenge the second reason, this finding is a verity on appeal. See Hill, 123 Wn.2d at 647.
Even assuming that the trial court’s refusal to sentence Miller under DOSA is a reviewable issue, this finding alone would justify the trial court’s decision. DOSA is a treatment-oriented alternative to a standard range sentence for drug offenders with substance abuse problems. State v. Kane, 101 Wn. App. 607, 609, 614, 5 P.3d 741 (2000). As the trial court concluded that Miller did not exhibit a drug addiction, its finding that he was ineligible for DOSA was appropriate. Finding no error, 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.
WE CONCUR: HOUGHTON, J., HUNT, A.C.J.