STATE v. DUDDLES, 31165-8-II (Wash.App. 1-19-2005)

No. 31165-8-IIThe Court of Appeals of Washington, Division Two.
Filed: January 19, 2005 UNPUBLISHED OPINION

Appeal from Superior Court of Pierce County. Docket No: 02-1-05305-1. Judgment or order under review. Date filed: 02/06/2004. Judge signing: Hon. James R. Orlando.

Counsel for Appellant(s), Lise Ellner, Attorney at Law, PO Box 2711, Vashon, WA 98070-2711.

Counsel for Respondent(s), John Michael Sheeran, Attorney at Law, Pierce Cty Prosecutor S, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2102.

HOUGHTON, P.J.

Scott Arlen Duddles appeals his jury convictions of unlawful possession of a controlled substance with intent to deliver, four counts of second degree possession of a firearm, attempted unlawful manufacturing of a controlled substance, and two counts of bail jumping. He contends the police acquired the evidence through the use of a pretexual stop. We disagree and affirm.

Facts
While on routine patrol, Tacoma police officers Aaron Quinn and Stephen Shepard began following behind a 1993 Ford Explorer. After approximately a block and one-half, the Explorer turned right without using a turn signal. The officers stopped the car for the infraction of failing to signal and contacted the driver, Duddles. Duddles advised Quinn that his license was suspended. The law enforcement support agency (LESA) records confirmed this.

Quinn arrested Duddles for driving with a suspended license, handcuffed him, and Shepard read him his Miranda[1] rights. During an initial patdown, Quinn discovered a holster on Duddles’ belt.

A search incident to arrest uncovered marijuana in Duddles’ pocket. Shepard searched the Explorer and found a loaded handgun under the driver’s seat. A blue nylon bag containing coffee filters with methamphetamine residue, marijuana, and prescription medication was next to the driver’s seat.

In a storage area located in the driver’s side door, Shepard found a black leather bag containing lock picks. A black nylon bag behind the passenger’s seat contained gun cleaning equipment. A black nylon bag behind the driver’s seat contained two loaded handguns, a .44 magnum and a.357 revolver.

Between the two front seats, Shepard found a semiautomatic weapon and a Tupperware container with ten baggies of methamphetamine. At the back of the Explorer, Shepard discovered another black nylon bag containing a coffee pot, coffee filters, a plastic funnel, and other glassware. All the items in this bag smelled strongly of solvent.

The State charged Duddles by second amended information with two counts of unlawful possession of a controlled substance with intent to deliver, four counts of second degree possession of a firearm, one count of attempted unlawful manufacturing of a controlled substance, possession of burglar tools, and three counts of bail jumping.[2] Before trial, Duddles filed a CrR 3.6 motion to suppress the evidence found in what he alleged was a pretextual traffic stop. The trial court denied the motion. The CrR 3.6 written findings of fact and conclusions of law state:

FINDINGS OF FACT
1. On November 19, 2002 at about 11:45 p.m., Tacoma Police Officers Shepard and Quinn were on patrol duty in a marked patrol vehicle when they observed a 1993 Ford Explorer make a turn without signaling. The officers initiated a traffic stop and contacted the defendant who was the driver of the vehicle. The officers did not know the defendant and no prior contact with the defendant’s vehicle prior to the stop. The officers were on routine patrol at the time of the stop and were not assigned to any special enforcement unit.

2. A routine records check revealed that Duddles’ license to drive was suspended in the Third Degree and he was placed under arrest.

3. Defendant Duddles was not unlawfully detained prior to his arrest for driving while suspended.

4. Evidence was found at the scene incident to a valid arrest.

5. Officers Quinn, Shepard and Quilio testified at the hearing and were credible witnesses.

CONCLUSIONS OF LAW
1. Law enforcement may lawfully stop drivers to investigate traffic infractions committed in their presence; thus the stop of the vehicle was valid.

2. Law enforcement officers may detain people lawfully stopped to check their driving status with the Department of Licensing; thus the defendant was lawfully detained.

3. Defendant Duddles has failed to show that the firearms, drugs and other contraband later found in the vehicle were the fruit of an unlawful seizure.

Clerk’s Papers (CP) (July 23, 2004) at 5-6.

Discussion I. Pretext Stop
Duddles contends that the trial court erred in refusing to suppress the drug and weapon evidence. He challenges the trial court’s findings of fact and conclusions of law from the CrR 3.6 hearing.[3] Relying on State v. Ladson, 138 Wn.2d 343, 979 P.2d 833 (1999), Duddles argues that the traffic stop was pretextual and therefore unlawful.

Standard of Review
Written findings entered after a CrR 3.6 suppression hearing will be upheld if they are supported by substantial evidence in the record. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313
(1994). Evidence is substantial if it is sufficient to persuade a fair-minded, rational person of the truth of the finding. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999).

A pretextual traffic stop violates article I, section 7 of our state constitution because it is a warrantless seizure. Ladson, 138 Wn.2d at 358. The essence of a pretextual traffic stop is that the police stop a citizen not to enforce the traffic code, but to investigate suspicions unrelated to driving. Ladson, 138 Wn.2d at 349. When determining whether a given stop is pretextual, we 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.

In Ladson, the officers admitted that they stopped the vehicle to investigate suspicions that the occupants were involved in narcotics trafficking. They followed the vehicle for several blocks, looking for a legal justification to stop it. The officers eventually pulled the vehicle over for having expired license tabs. Ladson, 138 Wn.2d at 346. Because the officers admitted the reason for the stop was not to enforce the traffic code but rather to conduct a criminal investigation, the court concluded the stop was made under an unconstitutional pretext and the seized evidence had to be suppressed. Ladson, 138 Wn.2d at 360.

Here, unlike Ladson, there is no evidence that the reason the officers stopped the Explorer was for anything other than a routine traffic stop. The trial court expressly applied a pretexual analysis to the facts of the case and, in reviewing the totality of the circumstances, found that the officers’ decision to stop the vehicle for failing to signal was appropriate given the circumstances and nature of the infraction. These circumstances included that the officers were following the Explorer for only a block and one-half, the Explorer made a turn without signaling, and that the officers were on routine patrol, `not assigned to any special enforcement unit.’ CP at 5 (finding of fact 1).

The trial court decided, and we agree, that the totality of the circumstances does not lead to a conclusion that objectively or subjectively the stop was for anything but a traffic infraction; therefore, it was not unconstitutionally pretextual.

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.

BRIDGEWATER and ARMSTRONG, JJ., concur.