No. 50252-2-I.The Court of Appeals of Washington, Division One.
Filed: June 30, 2003. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Whatcom County Docket No: 01-1-01206-4 Judgment or order under review Date filed: 03/05/2002.
Counsel for Appellant(s), William Joseph Johnston, Attorney at Law, 401 Central Ave, Bellingham, WA 98225-4466.
Counsel for Respondent(s), Craig D. Chambers, Attorney at Law, Whatcom Co Prosecutor, 311 Grand Ave Fl 5, Bellingham, WA 98225-4048.
Kimberly Anne Thulin, Whatcom Cty Pros Atty’s Office, 311 Grand Ave Ste 201, Bellingham, WA 98225-4038.
ELLINGTON, J.
Dennis Handshew was convicted of possession of marijuana with intent to deliver. He appeals the trial court’s denial of his motion to suppress, alleging the Terry[1] stop and frisk that led to his arrest was unjustified. Because the totality of the circumstances of the initial stop and Handshew’s subsequent furtive gesture created a reasonable concern for officer safety, the search was proper. We affirm Handshew’s conviction.
FACTS
At approximately 11:22 p.m. on October 31, 2001, on an isolated stretch of I-5, Washington State Trooper Laughlin observed an Isuzu pickup slow from 60 to 50 miles per hour and twice cross the right fog line in the southbound lanes. Laughlin, who was on patrol alone, signaled the driver to stop. Laughlin first observed that the Isuzu passenger had not fastened his seatbelt properly. The passenger produced a Washington identification card in the name of Anthony Bezona, saying his license was suspended. The driver, Dennis Handshew, was unable to produce car registration, a driver’s license, or any other identification. Laughlin asked Handshew to step out of the vehicle, and performed a pat-down search for weapons. Immediately after this frisk, Handshew abruptly moved his right hand to his coat pocket. Startled, Laughlin told Handshew to put his hand on the car, and opened Handshew’s pocket with his thumb and forefinger. In the pocket, Laughlin saw a substance that appeared to be marijuana. Handshew confirmed it was. Laughlin placed Handshew under arrest for driving without a license and for possession of marijuana. A search incident to arrest revealed over $3,000 in cash on Handshew’s person and over a pound of marijuana in the truck.
Handshew’s motion to suppress was denied, and he was convicted by bench trial of possession of a controlled substance with intent to deliver.
DISCUSSION
Handshew contends there was an insufficient factual basis for a pat-down search, and that evidence seized as a result of the search should therefore be suppressed.
No findings of fact or conclusions of law were entered on the CrR 3.6 hearing. Neither party has objected to their omission. Such findings are required for purposes of review. CrR 3.6(b). Because the facts here are largely undisputed, and the trial court’s oral findings permit appellate review, we will proceed without the findings.[2] State v. Smith, 67 Wn. App. 81, 87, 834 P.2d 26 (1992), aff’d, 123 Wn.2d 51 (1993).
When evidence is obtained by a warrantless search, the burden is on the State to show that the search falls within an exception to the Fourth Amendment’s warrant requirement. State v. Collins, 121 Wn.2d 168, 172, 847 P.2d 919 (1993). Here, the State relies on the stop and frisk exception recognized in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
In conducting a Terry stop, “the Fourth Amendment will be satisfied where the following requirements are met: (1) the initial stop must be legitimate; (2) a reasonable safety concern must exist to justify a protective frisk for weapons; and (3) the scope of the frisk must be limited to the protective purpose.” Collins, 121 Wn.2d at 173 (citing Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612
(1972)). A reviewing court must evaluate the totality of circumstances presented to the investigating officer. State v. Glover, 116 Wn.2d 509, 514, 806 P.2d 760 (1991). Here, the parties do not dispute the validity of the initial traffic stop. Handshew contests the officer’s right to ask him to leave the truck, but when an initial stop is lawful, a request to step out of a vehicle does not intrude on the driver’s reasonable expectation of privacy. State v. Kennedy, 107 Wn.2d 1, 9, 726 P.2d 445
(1986). The question here is thus the legality of the search.
A valid investigatory stop does not automatically justify a subsequent frisk. State v. Sweet, 44 Wn. App. 226, 233, 721 P.2d 560 (1986). On the other hand, an officer need not be certain an individual is armed before conducting a pat-down for weapons. Rather, a protective frisk for weapons is justified when a reasonably prudent officer “would be warranted in the belief that his safety or that of others was in danger.” Collins, 121 Wn.2d at 173 (quoting Terry, 392 U.S. at 27). The judgment of the officer in the field is entitled to deference from reviewing courts. “`A founded suspicion is all that is necessary, some basis from which the court can determine that the [frisk] was not arbitrary or harassing.'” Collins, 121 Wn.2d at 173 (quoting State v. Belieu, 112 Wn.2d 587, 601-02, 773 P.2d 46 (1989)). Applying this standard here, Trooper Laughlin’s frisk of Handshew was proper if a reasonably careful police officer in the same circumstances would have had a founded suspicion that his or her own safety or the safety of others was threatened. Trooper Laughlin believed that a frisk was justified for several reasons: the time and location of the stop (11:22 p.m. on an isolated stretch of interstate leaving the county); the fact that he was alone and had no immediate backup available; and the fact that Handshew failed to produce any form of identification and had no registration for the vehicle. In the trooper’s experience, persons without identification often have outstanding warrants, and such a person about to cross a county line was of still greater concern.
The trial court found that, considering all the facts and circumstances, it was reasonable for the trooper to conduct a Terry frisk. We agree. Handshew’s failure to produce any form of valid identification or vehicle registration when stopped on an interstate leaving the county provided a founded suspicion that the truck was stolen or that he feared arrest on an outstanding warrant, and the trooper’s experience that such persons are more likely to be armed and dangerous justified safety concerns, particularly given the dark, remote location and the fact the trooper was alone. See Collins, 121 Wn.2d at 174-75
(individual who has been stopped may be more willing to commit violence against a police officer at a time and in a location when few people are likely to be present to witness it). Certainly there is no indication the frisk was arbitrary or harassing.
The Terry frisk yielded nothing. But Handshew startled the trooper by suddenly moving his right hand to his coat pocket. Trooper Laughlin examined the pocket by opening it with his thumb and forefinger. Handshew contends this was an unwarranted intrusion, because a pat-down search was the maximum intrusion justified under the circumstances. .
We disagree. “The scope of an investigatory stop may be enlarged if the stop itself confirms existing suspicions or arouses further suspicions.” State v. Pressley, 64 Wn. App. 591, 597, 825 P.2d 749 (1992). The trooper’s search of the pocket resulted exclusively from suspicions created by Handshew’s sudden hand gesture:
Immediately after I conducted my pat-down he turns and immediately with his right hand goes into his right pocket. In fact, it was so quick it startled me. I said whoa, whoa, take your hand out of your pocket; put your hand back up there. In fact, I opened the pocket, I don’t even go inside the pocket, I see clearly, it’s a pocket without straps, there’s no strap, and I see a baggie what I observe as marijuana based on my training and experience.
Report of Proceedings (Jan. 22, 2002) at 10-11. Trooper Laughlin testified that although his initial search had not revealed a weapon, he could not rule out the presence of small weapons in Handshew’s coat pocket. Handshew claims it was a cold night and he wanted to keep his hands warm. Even if this were a possible explanation, Handshew does not explain why he put only his right hand in his pocket to keep it warm. We will not substitute our judgment for that of the officer in these circumstances. Where a pat-down is inconclusive, reaching into the clothing is the only reasonable course of action for the police officer to follow. State v. Hudson, 124 Wn.2d 107, 112, 874 P.2d 160 (1994); State v. Watkins, 76 Wn. App. 726, 730, 887 P.2d 492 (1995) (citing State v. Wilkinson, 56 Wn. App. 812, 815, 785 P.2d 1139 (1990)). The trial court concluded that Handshew’s furtive gesture made it reasonable for the trooper to look in Handshew’s pocket for own his protection, and we agree.
Even if the initial pat-down search was improper, it yielded no evidence.
The real question here is whether the officer was, under the totality of the circumstances, entitled to open Handshew’s pocket and look inside. Given the time, place, and Handshew’s conduct, we hold he was.
Affirmed.
KENNEDY and AGID, JJ., concur.