STATE v. CAPSHAW, 29204-1-II (Wash.App. 8-19-2003)

No. 29204-1-IIThe Court of Appeals of Washington, Division Two.
Filed: August 19, 2003 UNPUBLISHED OPINION

Appeal from Superior Court of Cowlitz County Docket No: 02-1-00270-3 Judgment or order under review Date filed: 08/08/2002

Counsel for Appellant(s), Heiko Philipp Coppola, Attorney at Law, Cowlitz Co Pros Aty Offc, 312 SW 1st Ave, Kelso, WA 98626-1799.

Counsel for Respondent(s), Robert W. Jr Huffhines, Attorney at Law, 206 N Pacific Ave, Kelso, WA 98626-3414.

BRIDGEWATER, J.

The State appeals a dismissal based on a holding by the trial court that a traffic stop was pretextual. We affirm.

FACTS
The uncontested facts are that Longview Police Officer Chris Trevino, who regularly enforces traffic laws, was on routine patrol of a high crime area at 10:53 p.m. on March 4, 2002, in Longview, Washington. Trevino noticed a 1983 Chevrolet Monte Carlo that had its rear license plate leaning away from the car.[1] That car has its gas tank access behind the license plate, which pulls down. The court took judicial notice that such equipment citations are not very commonly cited. Trevino was able to figure out the plate as the cars pulled to the curb.

After speaking with Robert Gerald Capshaw and his passenger, Trevino checked Capshaw’s license and found that he had a suspended driver’s license. Trevino arrested Capshaw, searched him, placed him in the patrol car, and read him his rights. Then, Trevino repeatedly asked Capshaw about what he would find in a search of the Monte Carlo.

Trevino returned to the Monte Carlo, allowed the passenger to go, and searched the car. He found a film canister containing what later proved to be methamphetamine. Capshaw was charged with violating the Uniform Controlled Substances Act, RCW 69.50.401(d), and third degree driving with a suspended license, RCW 46.20.342(1)(c).

But there are differing accounts of how the stop occurred. Capshaw and his passenger, Stephanie Jacobs, testified that Trevino passed them going the opposite direction, made a U-turn to get behind them, and immediately turned on his lights. When he was making that U-turn, Capshaw was about to turn right onto an intersecting street; so, Capshaw completed his turn and pulled over to the curb in response to the officer’s flashing lights. Though Trevino testified that he drove behind them for about a block, he could not recall, but agreed it is possible, that he came toward them from the opposite direction and then made a U-turn to follow them. Trevino testified that he did not turn on his lights until Capshaw began to pull over.

Capshaw and Jacobs testified that before taking their identification, Trevino said that he had pulled them over for not signaling when they pulled to the curb. Trevino testified that it was possible that he initially only told them of the failure to signal and remembers mentioning the leaning license plate after Capshaw was in custody.

Capshaw testified that after he was read his rights and placed in the patrol car, Trevino said, `I don’t believe you’re the big drug dealer on 19th. But do you have any drugs or other contraband in your car?’ Report of Proceedings (RP) at 70. Capshaw further testified that after asking whether he could search the car, Trevino said, `sir, if there’s any drugs or contraband in the car, now is the time to tell me, and I decide if you go to jail or not.’ RP at 70. Capshaw testified that Trevino asked about drugs more than four times.

Trevino testified that he remembers mentioning to Capshaw, after the search of the car, that he did not think Capshaw was a big drug dealer. But Trevino denied stating that he would decide whether Capshaw went to jail. Trevino testified that he always asks about contraband before searching a vehicle, out of concern for needles and weapons, and that he was persistent in asking about contraband, not drugs.

Jacobs testified that after placing Capshaw in the patrol car and questioning him, Trevino came back to the Monte Carlo and asked her whether she had any drugs under her seat and then told her she was free to go. Trevino testified that he did not recall asking Jacobs about drugs but it was possible that he did.

The trial court granted the motion to suppress the evidence and dismissed the charges without prejudice. The State assigns error to the following findings:

2. Officer Trevino was driving his patrol car West-bound. . . . At the same time, defendant Robert Capshaw was driving a 1983 Chevrolet Monte Carlo East-bound.

. . . .

4. Mr. Capshaw was about to turn right. . . . As soon as Officer Trevino passed the Monte Carlo, the officer performed a U-turn, getting behind the Monte Carlo. He had not yet observed any traffic or equipment violation. This court therefore finds that Officer Trevino had some reason other than a traffic or equipment violation for pursuing the car driven by Mr. Capshaw.

. . . .

6. Once behind Mr. Capshaw, Officer Trevino testified that he observed that the required license plate light was illuminated; however, he testified that the plate was leaning forward, making it hard to read. Officer Trevino’s original police report merely indicated that he had some trouble reading the plate; a later report stated it was impossible to read the plate.

. . . .

9. Officer Trevino’s questioning of Mr. Capshaw was not about the traffic violations that Officer Trevino testified he observed. Instead, he questioned the defendant about whether there was any contraband in the car.

. . . .

11. This court finds that Officer Trevino’s U-Turn to get behind defendant’s vehicle shows that the officer’s primary purpose in stopping the car was something other than the minor traffic violation which is the stated or facial reason for the stop. Clerk’s Papers (CP) (Feb. 18, 2003) at 5-6.

ANALYSIS I. Factual Findings
The State bears the burden of showing that the facts would not persuade a fair-minded person to agree either (1) with the trial court’s findings or (2) that those findings support the trial court’s conclusions.[2]
The State argues that only equivocal evidence shows that Trevino made a U-turn to follow the Monte Carlo. The defense responds that Capshaw and Jacobs testified to the U-turn, and Trevino’s lack of memory did not contradict them.

Given that the trial court found for Capshaw and incorporated his and Jacobs’s version of the U-turn in the findings, the court implicitly found Capshaw and Jacobs more credible. That measure of the witness’s credibility is within the fact-finder’s proper discretion and not subject to review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). The trial court obviously made just such a credibility determination although not explicitly stated. Accordingly, Capshaw’s and Jacobs’s testimony provides substantial evidence supporting the court’s findings that Trevino made a U-turn to follow Capshaw and that he did so in order to find a pretextual reason to stop the car.

The other challenged findings of fact (Findings 6 and 9) are not significantly contested. The State argues that Finding 9 (questioning Capshaw only about contraband) contradicts Finding 8 (initially mention only the failure to signal as the reason for the stop). That argument misses the point: Trevino did not mention the license plate problem until much later, even though it was the purported reason for initiating the stop. Further, the questioning happened later, at an exchange separate from Trevino’s initial statement of the reason for the stop. Finding 6, Trevino’s characterization of the license plate problem, is actually unchallenged: There are no contradictory facts in evidence and the State does not present contrary argument. Thus, the trial court’s findings are sound on appeal.

II. Legal Findings
With a few exceptions, warrantless searches and seizures are per se unreasonable and violate article I, section 7 of the Washington Constitution. State v. Hendrickson, 129 Wn.2d 61, 70-71, 917 P.2d 563
(1996). One of those exceptions is a search incident to the arrest of a person in possession of a vehicle (i.e., when arresting a driver), when an officer may `search the passenger compartment of a vehicle for weapons or destructible evidence.’ State v. Stroud, 106 Wn.2d 144, 152, 720 P.2d 436
(1986). But `arrest may not be used as a pretext to search for evidence.’ State v. Michaels, 60 Wn.2d 638, 644, 374 P.2d 989 (1962). Accordingly, `a traffic infraction may not be used as a pretext to stop to investigate for a sufficient reason to search even further.’ State v. Ladson, 138 Wn.2d 343, 353, 979 P.2d 833 (1999). If there is such a pretextual stop, the Washington Constitution requires that `all subsequently uncovered evidence becomes fruit of the poisonous tree and must be suppressed.’ Ladson, 138 Wn.2d at 359.

To determine whether an arrest is a pretext for accomplishing a search, `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 359. In Ladson, gang patrol officers were using traffic infractions as a means to pull over people in order to initiate contact and questioning where there was a known potential for intelligence gathering. Ladson, 138 Wn.2d at 346. The Ladson court made a clear distinction: `the arrest (or stop) is permissible but for the fact it is a pretext to accomplish an impermissible ulterior motive.’ Ladson, 138 Wn.2d at 354. A Division Three case succinctly noted the basic tension: There is `a fundamental difference between the detention of a citizen for the purpose of discovering evidence of crimes and a community caretaking stop aimed at enforcing the traffic code.’ State v. DeSantiago, 97 Wn. App. 446, 451, 983 P.2d 1173 (1999) (citing Ladson, 138 Wn.2d at 358 n. 10).

The question centers, then, on Trevino’s purpose in choosing to turn around to follow and then pull over Capshaw: Was it to enforce the traffic code or to seek an opportunity to investigate more weighty crimes? The court properly frames the issue in its conclusion number 8:

8. This court concludes that the relevant inquiry is to determine whether the facially valid reason for the stop is `sufficiently primary’ among the various possible reasons for the stop. If it is, the stop is not pre-textual. If it isn’t, then other (invalid) purposes are the main reasons for the stop, and the stop is pre-textual.

CP (Feb. 18, 2003) at 9-10.

The State argues that the high crime area, late hour, and U-turn are all inconsequential because Trevino was enforcing the traffic code, as he is supposed to do. The State concludes that the stop is valid because `even patrol officers whose suspicions have been aroused may still enforce the traffic code, so long as 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) (citing Ladson, 138 Wn.2d at 357-58), review denied, 142 Wn.2d 1027 (2001). However, the State’s citation to Hoang does not help them. Hoang dealt with a very similar situation, but the appellant there did not challenge some important trial court findings. After finding the officer credible, the unchallenged finding was that the officer `would have made the same decision to pull Hoang over . . . even if the officer had not just observed’ the suspicious behavior.[3]
Hoang, 101 Wn. App. at 741. That is, the Hoang court started from the assumption that the officer validly would have made the stop regardless of the suspicious behavior; with that limitation, the court found no evidence to trump those presumptions.

Here, the court implicitly found the officer not credible and, therefore, there is no assumption that Trevino would have pulled over another car without the suspicious circumstances (a 20-year-old car, in a high crime area, late at night). On the contrary, the totality of the circumstances showed possible ulterior motives: Trevino turned to pursue the Monte Carlo before he could perceive any problems with the rear license plate, and he did not tell Capshaw that the reason he was stopping him was for the rear plate.

As the party challenging the dismissal below, the State had the burden to show that substantial evidence does not support the trial court’s findings of fact or that those findings do not support the conclusions of law. See Nordstrom Credit, Inc. v. Dep’t of Revenue, 120 Wn.2d 935, 939-940, 845 P.2d 1331 (1993). Here, the trial court has made a credibility determination that the officer was not credible. That determination voids the express reasons given for the traffic stop and leaves only one alternative. There was another reason for stopping Capshaw: `to conduct a criminal investigation unrelated to defendant’s driving.’ CP (Feb. 18, 2003) at 10. The State did not meet its burden.

Affirmed.

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.

HOUGHTON, P.J. and ARMSTRONG, J., concur.