STATE v. CARDENAS, 19643-7-III (Wash.App. 3-19-2002)

No. 19643-7-IIIThe Court of Appeals of Washington, Division Three. Panel Two.
Filed: March 19, 2002 UNPUBLISHED OPINION

Appeal from Superior Court of Benton County, No. 001004269, Hon. Carolyn A. Brown, September 29, 2000, Judgment or order under review.

Counsel for Appellant(s), Craig Stilwill, 504 W Margaret St, Pasco, WA 99301.

Counsel for Respondent(s), Andrew K. Miller, Benton County Prosecutor, #e, 7320 W Quinault, Kennewick, WA 99336.

Terry J. Bloor, Benton Co Pros Office, 7320 W Quinault, Kennewick, WA 98336.

SCHULTHEIS, J.

Guillermo Cardenas, the driver of a vehicle stopped for an illegal lane change, contends the trial court erred when it denied his motion to suppress evidence seized after officers discovered illegal drugs, a weapon, and a large amount of cash on the front seat passenger. Further questioning led to Mr. Cardenas’s arrest on a drug charge. Because we find the motion to suppress was properly denied, we affirm the conviction.

FACTS
On May 29, 2000, at approximately 10:49 p.m., Trooper Jason Davis of the Washington State Patrol stopped a vehicle in Benton County for a traffic infraction. Mr. Cardenas, age 19, was driving the vehicle and his girlfriend, Monica Velez, age 16, was the front seat passenger. Mr. Cardenas’s uncle, age 29, was the back seat passenger. The trooper approached the vehicle from the passenger side and noticed that no one in the car was wearing a seatbelt. From his position outside the car Trooper Davis could see a large amount of cash in the front pocket of Ms. Velez’s sweatshirt. He said the wad of cash was about the size of his fist, which he thought was very unusual since Ms. Velez appeared, and was later determined, to be a minor. The trooper was also concerned because Ms. Velez had a duffel bag on her lap and another one under her feet. He thought this was odd because there was plenty of room in the car to store the duffel bags other than so close to her person. Because of his training and experience as a law enforcement officer, Trooper Davis immediately considered the possibility that the large amount of cash in Ms. Velez’s pocket could be related to drug activity. He also knew that weapons were often associated with the drug trade. Due to officer safety concerns, Trooper Davis asked Ms. Velez to exit the vehicle. As she did the trooper noticed that Ms. Velez had to hold up the weight of her bulging sweatshirt pocket with both hands. The trooper asked her what she had in the pocket. Because she looked frightened Trooper Davis asked her if she was concealing a weapon and drugs. She candidly admitted that she was.

Trooper Lux, who had arrived on the scene in another vehicle, assisted at this point by removing the weapon from Ms. Velez’s possession. He also handcuffed her while Trooper Davis removed Mr. Cardenas and the other passenger from the vehicle and handcuffed them. A subsequent search led to the discovery of drugs and a large amount of money on Mr. Cardenas’s person, which resulted in a drug charge being filed against him.

Mr. Cardenas filed a motion to suppress all evidence seized as a result of the alleged illegal seizure of Ms. Velez. The motion was denied and a bench trial on stipulated facts was conducted. Mr. Cardenas was found guilty of possession of a controlled substance: cocaine, and was sentenced within the standard range. This timely appeal resulted.

ANALYSIS
The sole issue on appeal is whether the trial court erred when it denied the motion to suppress evidence, which led to Mr. Cardenas’s conviction on the drug charge. Mr. Cardenas assigns error to the court’s finding that in Trooper Davis’s experience and training, large amounts of cash may be related to drug deals and that weapons are often used in drug transactions.[1] He also assigns error to the court’s conclusion that the trooper had a reasonable suspicion of drug activity when he saw the large amount of cash in Ms. Velez’s pocket as well as the unusual manner in which she held the duffel bags.[2] Finally, he assigns error to the court’s conclusion that Ms. Velez’s seizure was based on an articulable suspicion of drug activity.[3]

An appellate court will defer to the trial court’s findings of fact entered following a motion to suppress when those findings are supported by substantial evidence in the record. State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994). Conclusions of law are reviewed de novo. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999).

Although he admits the original traffic stop was valid, Mr. Cardenas contends there was no justification for the seizure of Ms. Velez because she was merely a passenger in a vehicle stopped for a minor traffic infraction. He cites the Mendez court, which determined that while officers need to control the scene of a traffic stop to ensure their own safety, “this must be done with due regard to the privacy interests of the passenger, who was not stopped on the basis of probable cause by the police.” Id. at 220. The court then listed several factors that would justify officers at the scene of a traffic stop to direct their attention to a passenger. They include: (1) the number of officers present; (2) the number of occupants in the vehicle; (3) the behavior of the vehicle’s occupants; (4) the time of day; (5) the location of the traffic stop; (6) the amount of traffic at the scene of the stop; (7) the number of affected citizens; and (8) an officer’s prior knowledge of the occupants of the stopped vehicle. Id. at 220-21.

Mr. Cardenas claims Trooper Davis did not articulate an objective rationale predicated specifically on criminal activity or officer safety concerns that would allow him to ask a passenger to step out of the vehicle. He maintains Ms. Velez’s seizure at the scene of the traffic stop was a groundless intrusion on her privacy expectations. Accordingly, he asks this court to reverse the denial of his motion to suppress the cocaine, the cash, and the weapon produced as the result of that alleged illegal detention and search.

The State, citing City of Spokane v. Hays, 99 Wn. App. 653, 659, 995 P.2d 88 (2000), claims the trooper only had to point to a fact that created a heightened sense of danger (as viewed by the objectively reasonable officer) in securing the scene of a traffic stop in order to ask a passenger to step away from the vehicle. The State maintains that under the specific facts of this case, it was reasonable for Trooper Davis to ask Ms. Velez to exit the vehicle because: (1) the stop took place late at night; (2) there were only two officers on the scene and three occupants in the vehicle; (3) Ms. Velez, who appeared young, did not have any identification on her; (4) the officer could see a wad of cash, about the size of his fist, in Ms. Velez’s sweatshirt pocket; (5) in his training and experience Trooper Davis knew large amounts of cash and weapons are often present in drug transactions; and (6) Ms. Velez held two duffel bags in a manner that could easily have concealed a weapon.

Under the facts presented, what started out as a routine traffic stop, where the passenger had an increased privacy interest, quickly turned into a Terry[4] investigative stop when the officer easily noticed the large amount of cash in Ms. Velez’s pocket. Of utmost importance to the trooper was the fact that she held two duffel bags in a protective manner close to her body that could have potentially hidden a loaded weapon. The trooper clearly testified that his main concern was officer safety due to his professional knowledge and experience with the drug culture. His concern was formed prior to asking Ms. Velez to exit the car. This was not, as Mr. Cardenas alleges, a fishing expedition. The trooper’s act of attempting to check the vehicle for weapons was a reasonable method of assuring officer safety and was only a de minimus intrusion upon Ms. Velez’s privacy rights.

Citing State v. Armenta, 134 Wn.2d 1, 13, 948 P.2d 1280 (1997), Mr. Cardenas next argues that mere possession of a large amount of money does not, in and of itself, give rise to a reasonable suspicion of criminal activity. Consequently, the trooper did not have the right to ask Ms. Velez to exit the car and the evidence should have been suppressed. We find that Armenta is distinguishable on its facts. Mr. Armenta and his friend were adults who approached a police officer in broad daylight at a truck stop for assistance with their car. The officer began to ask questions about what was in Mr. Armenta’s pocket even though there was no initial suspicion of criminal activity in the officer’s mind. When Mr. Armenta showed the officer a wad of cash secured with a rubber band, the officer continued to ask questions about the money. The Supreme Court found the particular circumstances required suppression of evidence gathered as a result of the improper seizure of the men.

Here, on the other hand, Ms. Velez, a juvenile who was carrying a huge amount of cash that was immediately and easily seen by the trooper, was one of three people in a car stopped for a traffic infraction. Additionally, as the trooper approached the car by himself, late at night, Ms. Velez appeared to hover over two duffel bags that could have easily concealed a loaded weapon. When asked about the cash in her pocket, Ms. Velez said she had just cashed her paycheck. This did not ring true to Trooper Davis who told the court that the wad of cash he saw in Ms. Velez’s pocket that night was much more money than `would be obtained by cashing a normal paycheck.’ CP at 23. Because of his training and experience, seeing that amount of money on such a young person immediately raised concerns in the trooper’s mind that criminal activity could be connected with the routine traffic stop.

Because of the large amount of cash in her pocket and the protective manner in which Ms. Velez held the duffel bags, it was reasonable for Trooper Davis to investigate the circumstances more fully in order to ensure his safety was not in jeopardy. The court’s findings are supported by substantial evidence in the record and the conclusions follow from the court’s findings. The trial court properly denied the motion to suppress evidence.

Affirmed.

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.

BROWN, A.C.J. and KATO, J., concur.