STATE v. KUNST, 28077-9-II (Wash.App. 7-15-2003)

No. 28077-9-IIThe Court of Appeals of Washington, Division Two.
Filed: July 15, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

Appeal from Superior Court of Pierce County Docket No: 01-1-03253-6 Judgment or order under review Date filed: 11/09/2001

Counsel for Appellant(s), Pattie Mhoon, Attorney at Law, 949 Market St. Ste 488, Tacoma, WA 98402-3600.

Counsel for Respondent(s), Terry Lane, Pierce Co Pros Ofc, 930 Tacoma Ave S Rm R946, Tacoma, WA 98402-2105.

MORGAN, J.

Michael J. Kunst appeals his conviction for forgery. We affirm. On May 24, 2001, Tacoma police officers responded to a call of suspicious activity near a home at 4611 N. 25th Street. They spoke with a man who lived across the street, and with a woman who lived in a motor coach parked in the home’s driveway. The man had watched two white males knock on the doors and windows of the home and motor coach for about 45 minutes.

The woman had not been in the motor coach while the men were there. As she was returning, however, she had recognized a nearby car as one that Kunst and a man named Harbor had been using. Kunst and Harbor had come to the home about five days earlier, at the invitation of one of its occupants.

The woman had asked them to leave on that occasion, because she thought they were drug addicts. Since then, they had driven by several times a day, sometimes stopping and sitting in front. As the officers were obtaining this information, a car went by. The man and the woman identified it as the car of which they had been speaking.

The officers pulled it over, partly because it did not have a front license plate. After the car stopped, the officers identified Harbor as the driver and Kunst as the passenger. They also saw that Kunst was not wearing a seat belt. They ran a records check that revealed Harbor was a convicted offender, Kunst was under community supervision for drugs, and both had narcotics backgrounds.

A community corrections officer (CCO) was called and soon arrived. He informed Harbor and Kunst that each was violating community supervision by associating with another drug user. He searched the car, found some checkbooks, and took Harbor and Kunst to jail for violating the terms of their community supervision. One of the checkbooks belonged to a married couple named Ariel. In May 2001, the wife had ordered checks that never came. On May 14, 2001, a man had cashed one of those checks at a bank that had required him to put his thumbprint on the check. The signature on the check appeared to be the husband’s, but it was forged. The thumbprint was Kunst’s, although neither of the Ariels knew him. Kunst was charged with forgery. He filed a motion to suppress, and a hearing followed. No testimony was taken, as both parties stipulated to the facts in the police report.[1] The trial court ruled for the State but did not enter written findings and conclusions as required by CrR 3.6. After this court remanded with directions to enter such findings and conclusions, the trial court incorporated the police reports and concluded as follows:

1) [The police officers] had reasonable suspicion and cause to stop the vehicle based upon available witnesses [sic] information provided to them prior to the stop of the vehicle. 2) This was not a pretextual stop. The officers had reason to stop the vehicle both for the lack of front license plate, as well as investigation of suspicious reported activity. 3) The length of detention was not unreasonable under the circumstances. After finding that both the defendant and the driver were on supervision with Department of Corrections, police contacted probation officers who were on patrol and asked them to respond. [The police officers] respected the boundaries of their authority pursuant to the stop, and did not search the vehicle.[2]

After a trial, the jury convicted, the trial court imposed four months in jail, and Kunst filed this appeal. Kunst now argues that the trial court’s findings are not supported by substantial evidence; that the initial stop was unlawful because it was pretextual; and that the ensuing detention was unlawful because its scope and duration were unreasonable.

I.
The first question is whether the trial court’s findings of fact are supported by substantial evidence. The parties stipulated that the police reports could be used as evidence. The trial court accepted their stipulation and adopted the police report as its findings of fact.[3]
Given that the evidence and the findings are the same, the latter are necessarily supported by the former.

II.
The next question is whether the police made a valid Terry[4] stop of the car in which Kunst was a passenger. We consider (A) whether the stop was based on a reasonable and articulable suspicion of criminal activity and (B) whether the stop was pretextual. A. To make a valid Terry stop, the police must have `specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.’[5] When evaluating the merits of such a stop, a court examines the totality of circumstances available to the officer,[6]
including but not limited to information furnished by identified citizen informants.[7] The officers in this case knew that Harbor and Kunst had been at the home several days earlier and had been asked to leave. They knew that Harbor and Kunst had been hanging around the home since then. They knew that Harbor and Kunst had just been on the property for perhaps 45 minutes, even though no one was home. They knew that Kunst had repeatedly knocked on the doors and windows of the home and peered into the windows of the motor coach. They had a reasonable and articulable suspicion of criminal activity for example, trespass and the initial stop was lawful.

B. According to State v. Ladson,[8] article I, § 7 of the Washington Constitution bars police from using a traffic stop to justify a warrantless seizure when their real purpose is to investigate criminal activity for which they lack probable cause or reasonable suspicion. Characterizing such a stop as `pretextual,’ the Ladson court explained:

[T]he problem with a pretextual traffic stop is that it is a search or seizure which cannot be constitutionally justified for its true reason (i.e., speculative criminal investigation), but only for some other reason (i.e., to enforce [the] traffic code) which is at once lawfully sufficient but not the real reason. Pretext is therefore a triumph of form over substance; a triumph of expediency at the expense of reason. But it is against the standard of reasonableness which our constitution measures exceptions to the general rule, which forbids search or seizure absent a warrant.[9]

Thus, Ladson does not apply to any stop that can be constitutionally justified for its true reason.[10]

As already discussed, the traffic stop at issue here is justifiable for its true reason a reasonable suspicion of trespass or other criminal activity at 4611 N. 25th Street. Accordingly, Ladson does not apply, and the initial stop was lawful under Terry v. Ohio.

III.
The last question is whether Kunst’s detention was reasonable in scope and duration. A Terry stop must be reasonable not only at its inception, but also in its scope and duration.[11] Reasonableness is determined by looking at the purpose of the stop, the degree of intrusion on the person’s liberty, and the length of time the person is detained.[12] At a minimum, however, it is reasonable to check the person’s identification and law enforcement records.[13] Having made a valid Terry stop, the officers in this case reasonably detained Kunst to ascertain who he was and to check his records. Almost immediately, they discovered he was under community supervision and in the company of another convicted offender. They reasonably summoned a CCO, who determined the conditions to which Kunst was subject and searched the car pursuant to one of those conditions. Holding that each of these actions was reasonable under the circumstances, we conclude that the ensuing discovery of the Ariels’ checkbook was lawful.

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.

HUNT, C.J. and ARMSTRONG, J., concur.