STATE v. GUTIERREZ, 135 Wn. App. 1034 (2006)

No. 23607-2-III.The Court of Appeals of Washington, Division Three.
November 2, 2006.

The unpublished opinion in this cause was withdrawn by order of the Court of Appeals dated January 30, 2007.

Counsel for Appellant(s), Brent Adrian De Young, De Young Law Office, 1217 E Wheeler Rd, Moses Lake, WA, 98837-1859.

Counsel for Respondent(s), Stephen Phillip Scott, Attorney at Law, Grant Pros Attorney, Po Box 37, Ephrata, WA, 98823-0037.

Teresa Jeanne Chen, Grant County Prosecutors Office, Po Box 37, Ephrata, WA, 98823-0037.

KULIK, J.

Trooper Greg Monroe observed Mr. John Gutierrez’s vehicle speeding and made a traffic stop. Mr. Gutierrez presented an Arizona identification card. A check of his record revealed that Mr. Gutierrez had a suspended Arizona driver’s license. The trooper arrested Mr. Gutierrez for driving while license suspended. Mr. Gutierrez’s passenger told the officer there were weapons in the car. A search of the car produced multiple handguns, marijuana, cocaine and a pipe. Mr. Gutierrez was convicted of possession of cocaine, marijuana and carrying a pistol. On appeal, Mr. Gutierrez asserts that the traffic stop was pretextual, and therefore unconstitutional. We reject Mr. Gutierrez’s assertions of a pretextual stop and of violations of his privacy. We affirm his convictions.

FACTS
Trooper Greg Monroe, a canine handler with the Washington State Patrol, was on traffic patrol in Grant County on December 31, 2003. His primary duty was traffic enforcement. Trooper Monroe observed Mr. Gutierrez’s vehicle and measured its speed at 77 miles per hour. Another state trooper measured Mr. Gutierrez’s speed at 79 miles per hour. The speed limit for that location was 70 miles per hour.

Trooper Monroe pulled Mr. Gutierrez’s vehicle over for speeding. The officer informed Mr. Gutierrez that he had been pulled over for speeding, and that their conversation was being recorded. The contact with Mr. Gutierrez was videotaped although some of the tape recording did not have audio. The officer asked to see Mr. Gutierrez’s license and registration. Mr. Gutierrez gave the officer an Arizona identification (ID) card, but did not produce his license. Trooper Monroe took Mr. Gutierrez’s ID card and returned to the patrol car to run a check on the card.

The ID report showed that Mr. Gutierrez had a suspended Arizona license. Officer Monroe then requested that another officer respond to his location and Officer Monroe placed Mr. Gutierrez under arrest, and placed him in the patrol car.

A passenger in Mr. Gutierrez’s vehicle told the officers that there were weapons in the car. Trooper Monroe began a search of Mr. Gutierrez’s vehicle. He located a pipe that “had the smell of burnt marijuana in it,” multiple handguns, marijuana, cocaine, and several bottles of liquor. Report of Proceedings (July 29, 2004) (RP) at 36.

The officers read Miranda[1] warnings to Mr. Gutierrez and then questioned him. Mr. Gutierrez admitted that he owned one of the guns, the marijuana, and the cocaine.

Mr. Gutierrez was originally charged with driving while license suspended, possession of cocaine, possession of marijuana, and carrying a pistol. The State dropped the charge of driving while license suspended because of insufficient time to get the Arizona documentation. The trial judge found Mr. Gutierrez guilty of the remaining three charges.

ANALYSIS 1. Was Mr. Gutierrez’s stop pretextual?
A pretextual traffic stop occurs when police pull over a citizen with the aim of conducting an investigation that is unrelated to driving, rather than stopping the individual with the goal of enforcing the traffic code. State v. Ladson, 138 Wn.2d 343, 349, 979 P.2d 833 (1999). Pretextual stops “generally take the form of police stopping a driver for a minor traffic offense to investigate more serious violations — violations for which the officer does not have probable cause.” State v. Myers, 117 Wn. App. 93, 94-95, 69 P.3d 367 (2003), review denied, 150 Wn.2d 1027 (2004). The stops in these cases were merely a pretext for further search or investigation regarding unrelated potential crimes, regardless of whether the pretextual arrest was facially valid. Ladson, 138 Wn.2d at 353-54. “Whether pretextual or not, a traffic stop is a `seizure’ for the purpose of constitutional analysis, no matter how brief.” Id. at 350.

Pretext stops are not permitted under article 1, section 7 of the Washington constitution. Id. at 352-53. When determining if a stop is pretextual, courts look to the totality of the circumstances, including both the objective reasonableness of the officer’s behavior and the subjective intent of the officer. Id. at 358-59.

Here, Mr. Gutierrez complains that law enforcement officers were interested in searching Mr. Gutierrez’s vehicle for evidence of unrelated crimes rather than stopping him for a traffic infraction. Trooper Monroe coached his drug detection dog to “Get it girl,” prior to making any contact with Mr. Gutierrez. RP at 81. The officer also made statements to the effect that he could “feel it when I came up to this one.” RP at 89-90. According to Mr. Gutierrez, this statement may be an indication that the officers suspected Mr. Gutierrez of other criminal activity when they initially pulled him over for speeding.

The facts of this case do not show that the initial traffic stop of Mr. Gutierrez was for any purpose other than enforcing the traffic code. Here, the officers had the primary duty of traffic enforcement. The search was not based on pretext, but on specific facts that supported the officers’ belief that Mr. Gutierrez was guilty of the criminal offense of driving while license suspended and carrying weapons in his vehicle. The statements about the officer’s intuition regarding Mr. Gutierrez came after the passenger told the officers that there were weapons in the car. The totality of these circumstances does not establish that the stop of Mr. Gutierrez was pretextual.

2. Was the stop of Mr. Gutierrez’s vehicle supported by probable cause?
A traffic stop is a seizure for purposes of constitutional analysis under both the fourth amendment of the United States Constitution and article 1, section 7 of the Washington Constitution. See Ladson, 138 Wn.2d at 350. “A traffic stop is constitutional if the officer has probable cause to believe a person has violated the traffic code.” Clement v. Dep’t of Licensing, 109 Wn. App. 371, 375, 35 P.3d 1171 (2001).

Here, law enforcement officers testified that their radar devices measured Mr. Gutierrez’s speed at 77 and 79 miles per hour. The speed limit at this location was 70 miles per hour. The Speed Measuring Devices (SMDs) used to measure the speed of Mr. Gutierrez’s vehicle had been checked both at the beginning and at the end of the officers’ shifts to ensure the accuracy of the readings.

The independent observations of Mr. Gutierrez’s speed by two officers, supported by the measurements of Mr. Gutierrez’s speed by two SMDs, are sufficient evidence for a person of reasonable caution to believe that Mr. Gutierrez committed a speeding violation. As such, the stop of Mr. Gutierrez was supported by probable cause, and was therefore valid.

3. Was the search of Mr. Gutierrez’s vehicle lawfully incident to arrest?
Mr. Gutierrez asserts that there was no probable cause to arrest him for the charge of driving with a suspended license, and further claims that he was not actually under custodial arrest until after the law enforcement officers had completed their search of his vehicle. Therefore, Mr. Gutierrez claims that the warrantless search of his vehicle does not fall within the search incident to arrest exception and was unlawful. These assertions are incorrect and are inconsistent with Mr. Gutierrez’s assertion regarding the Washington privacy act.

Warrantless searches
The fourth amendment of the United States Constitution and article 1, section 7 of the Washington Constitution provide for the right of privacy and protect against unlawful searches and seizures. State v. Fields, 85 Wn.2d 126, 130, 530 P.2d 284
(1975).

One exception to the warrant requirement is a search incident to arrest. State v. Gaddy, 152 Wn.2d 64, 70, 93 P.3d 872 (2004). A lawful custodial arrest is the only prerequisite required to a search incident to arrest. Id.

Once the State has established, which it did, that a lawful, custodial arrest has occurred, this court applies a “bright-line” test to any search incident to that arrest. Officers are permitted to search the driver and the passenger’s area of the car, with the exception of any locked containers therein, during the arrest process, “including the time immediately subsequent to the suspect’s being arrested, handcuffed, and placed in a patrol car.” State v. Stroud, 106 Wn.2d 144, 152, 720 P.2d 436 (1986). Mr. Gutierrez’s car was lawfully searched.

Probable cause
The arrest that formed the basis for searching Mr. Gutierrez’s car was for driving while license suspended. “Per RCW 10.31.100(3)(e), police officers may arrest a person without a warrant if they have probable cause to believe that the person is driving with a suspended driver’s license.” Gaddy, 152 Wn.2d at 70. This arrest was based on a report from the Arizona Department of Licensing that Mr. Gutierrez’s license was suspended. The question for this court is whether this report from an out-of-state licensing department is sufficient to establish probable cause.

This court employs the two-prong Aguilar-Spinelli[2] test in order to determine the reliability of information provided to law enforcement by a state department of licensing. See Gaddy, 152 Wn.2d at 71-72; State v. Chatmon, 9 Wn. App. 741, 745, 515 P.2d 530 (1973). The State must establish the basis of the informant’s information and the credibility of the informant or reliability of the information. Gaddy, 152 Wn.2d at 71-72.

Courts generally presume that the department of licensing has a basis of knowledge to support the information it provides to law enforcement. Id. at 72. This is largely due to the agency’s primary function and authority to regulate drivers’ licenses in this state. Id. Therefore, the first prong of the Aguilar-Spinelli test is usually satisfied when the informant at issue is the Washington Department of Licensing.

The second part of the test requires an examination of the credibility or reliability of the evidence. “If the identity of an informant is known — as opposed to being anonymous or professional — the necessary showing of reliability is relaxed.” Id. When the department of licensing is the informant, the information it provides is deemed presumptively reliable. Id. at 73.

Here, the department of licensing that furnished the information was not the Washington Department of Licensing, but was a sister agency in Arizona. This agency has similar powers and duties to those of the Washington department. See Ariz. Rev. Stat. Ann. §§ 28-3004.

Article IV, section 1 of the United States Constitution requires each state to give full faith and credit to the public acts, records, and judicial proceedings of every other state. State v. Esquivel, 132 Wn. App. 316, 319, 132 P.3d 751 (2006). See also 28 U.S.C. § 1738.

Here, the information given was based on Arizona public records as collected and maintained by the Arizona Department of Licensing. Under the constitutional mandate of full faith and credit, the information provided by the department of licensing of a sister state has the same overall guarantees of reliability under Aguilar-Spinelli as does the information provided by the Washington Department of Licensing. Because the information provided by the Arizona Department of Licensing regarding Mr. Gutierrez’s suspended license was presumptively reliable, this information was sufficient to provide probable cause for his arrest for driving while license suspended.

Custodial arrests
RCW 46.20.342 makes it unlawful to drive if the driver’s license is suspended in this or any other state. Because the officers had probable cause to believe that Mr. Gutierrez was driving with a suspended Arizona license, the arrest was lawful. However, Mr. Gutierrez’s arrest must also have been custodial in order for the search incident to arrest exception to apply. See State v. O’Neill, 148 Wn.2d 564, 587, 62 P.3d 489 (2003).

Merely requesting that a driver step out of a vehicle does not convert a traffic stop to a custodial arrest. State v. Henry, 80 Wn. App. 544, 552, 910 P.2d 1290 (1995). Similarly, there is no custodial arrest when a reasonable detainee under the circumstances would not consider himself or herself under custodial arrest. State v. Radka, 120 Wn. App. 43, 49, 83 P.3d 1038 (2004).

The officer told Mr. Gutierrez that he was being placed under arrest. Mr. Gutierrez was then handcuffed and placed in a patrol vehicle prior to law enforcement conducting a search of his car. Mr. Gutierrez was not free to leave the presence of the police. See, e.g., State v. Rupe, 101 Wn.2d 664, 684, 683 P.2d 571
(1984). This action is significantly more intrusive than merely requesting that a driver exit a vehicle and also demonstrates a manifest intent on the part of law enforcement to place Mr. Gutierrez in custody. A reasonable detainee under these circumstances would consider himself to be under custodial arrest.

4. Did the arresting officers violate the Washington privacy act?
Mr. Gutierrez contends the arresting officer violated his privacy rights by making a partial audio recording of his arrest. Washington’s privacy act prohibits intercepting or recording any private conversation or communication without the consent of all persons involved. Lewis v. Dept. of Licensing, 157 Wn.2d 446, 457, 139 P.3d 1078 (2006). Information that is obtained in violation of the privacy act is inadmissible in court. State v. Mazzante, 86 Wn. App. 425, 428, 936 P.2d 1206
(1997). Recordings also must “comply strictly with statutory requirements” to be admissible. Id.

Conversations between a police officer and a driver stopped on the road have recently been held not to be “private” and therefore generally outside of the application of the privacy act. Lewis, 157 Wn.2d at 460. Here, the conversations between Mr. Gutierrez and the troopers were not private. However, the court in Lewis also recognized officers are required to strictly comply with a portion of the privacy act, RCW 9.73.090(1)(c), despite the fact that such interactions are not private. Id. at 465.

Among other requirements, RCW 9.73.090(1)(c) prohibits any officer from intentionally turning off a sound recording device during the operation of a video camera. Here, Trooper Monroe turned off a portion of the sound recording that included his conversation with another officer after Mr. Gutierrez had been placed in custody. This violated the strict requirements of RCW 9.73.090(1)(c).

The remedy for such violations, however, is a limited one. The remedy for violation of the prohibition against turning off the sound recording on a video recorder is suppression of the recording. Lewis, 157 Wn.2d at 472. This videotape was never presented to the jury at trial.

In order to be entitled to relief based on a violation of the privacy act, Mr. Gutierrez must demonstrate some prejudice flowing from the alleged violation. See Rupe, 101 Wn.2d at 681. An error is not prejudicial unless, within reasonable probabilities, the outcome of the trial would have been materially altered had the error not occurred. Id. at 682.

Mr. Gutierrez can demonstrate no prejudice flowing from the alleged violation. The videotape was never placed before the jury at trial, and therefore had no impact on the jury’s verdict. Moreover, it was Mr. Gutierrez who introduced the tape during a CrR 3.6 hearing, and not the State. Therefore, Mr. Gutierrez cannot on appeal complain about the use of this tape. See, e.g., In re Pers. Restraint of Tortorelli, 149 Wn.2d 82, 94, 66 P.3d 606 (2003). Finally, the only remedy that Mr. Gutierrez would be entitled to under Lewis is suppression of the videotape at trial. The videotape was never admitted into evidence, and therefore this issue is moot. See In re Det. of Halgren, 156 Wn.2d 795, 817, 132 P.3d 714 (2006). We affirm.

A majority of the panel has determined 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.

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