STATE v. McILRATH, 46896-1-I (Wash.App. 3-4-2002)

No. 46896-1-I.The Court of Appeals of Washington, Division One.
Filed: March 4, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Appeal from Superior Court of Whatcom County, No. 001001145, Hon. Steven J. Mura, May 5, 2000, Judgment or order under review.

Counsel for Appellant(s), Washington Appellate Project, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.

Gregory C. Link, Washington Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101.

Counsel for Respondent(s), Rosemary H. Kaholokula, 311 Grand Ave Ste 201, Bellingham, WA 98225.

PER CURIAM.

Wiley McIlrath appeals his conviction for possession of marijuana, contending that the trial court erred in failing to suppress the marijuana found in his vehicle. The court concluded that McIlrath was effectively arrested without probable cause, but the marijuana inevitably would have been discovered. We affirm on the alternative ground that the agents’ contact with McIlrath constituted a lawful Terry stop.

FACTS
At the conclusion of the CrR 3.6 hearing, the trial court entered findings of fact and conclusions of law. Because McIlrath has not assigned error to any of the court’s findings, we consider them as verities.[1]

On January 26, 2000, McIlrath entered the United States from Canada at the Sumas Port of Entry. McIlrath told a border inspector that he was going to `Stanford’ on Highway 9, a location with which the inspector was not familiar. Based on this and other responses, the inspector referred McIlrath for a secondary inspection. During a search of the truck, agents saw a small black duffel bag with red handles, but nothing else of interest. McIlrath left and headed east of Sumas toward the Columbia Valley. The border inspector called Inspector John Nolte, who called Inspector Keith Wheeler and Agent Andrew Poore and told them to conduct a `follow-out’ of McIlrath’s truck. The three agents headed out in separate vehicles to track McIlrath, maintaining radio contact with each other.

The Columbia Valley is remote and rural with few residences or businesses and has a number of known drug smuggling trails. The area where Silver Lake and South Pass meet is very close to the border and has only light traffic. After about 15 minutes, Inspector Wheeler located McIlrath’s truck and began following it. McIlrath drove around on numerous roads, making multiple turns, and heading back over the same roads. At one point, McIlrath stopped in a store parking lot, exited his truck, and entered the store. He then entered a different store across the road, purchased food, and sat in his truck for about 30 minutes.

McIlrath then left and drove north on Silver Lake Road to a park. He entered the park, made a U-turn and exited, retracing his path. Agent Poore believed this to be a `heat run,’ i.e., McIlrath’s attempt to see if anyone was following him. McIlrath then drove to a trail known as the `clear cut’ trail, which is about 400 yards from the Canadian border and known for drug smuggling. After McIlrath entered the area, the agents observed new tire tracks in the snow that could only have been made by McIlrath’s truck. McIlrath made a number of U-turns on the road near the trail typical of counter-surveillance techniques. Eventually, he headed out of the area onto Highway 9. Unlike his earlier slow driving, he drove 65 to 75 miles per hour and made no U-turns.

In VanZandt, McIlrath turned into a parking lot, stopped, exited his truck, and began walking into a store. First Inspector Wheeler and then Agent Poore pulled in behind McIlrath. Agent Poore approached McIlrath, identified himself, and said, `I think you may have picked up marijuana — I’d like to look in your vehicle.’ McIlrath responded, `I think I want an attorney.’ Agent Poore told McIlrath to sit down and handcuffed him shortly thereafter. Agent Poore waited for about five minutes for other agents to arrive. He then placed McIlrath in the back of the patrol vehicle. After some additional time, he looked inside the window of McIlrath’s truck and saw the small duffel bag and a large hockey bag, which he recognized as a type of bag commonly used to transport marijuana across the border.[2] This large bag was different than the one earlier observed by the border inspector.

Shortly thereafter, agents requested a canine unit. In the meantime, Agent Leonard V’Dovec arrived, looked in the truck, and smelled marijuana through a small crack in the window. The officers sought a telephonic search warrant. They obtained a warrant to search the truck 44 minutes after the initial contact with McIlrath. One minute later, the dog arrived and alerted on the truck. Agents searched the truck and in the larger hockey bag found approximately 11 pounds of marijuana.

The trial court found that if Agent Poore had not contacted McIlrath but had allowed him to enter the store, Agent Poore would have looked inside the truck and seen the hockey bag. He would then have secured the vehicle, called for the canine unit, and sought a search warrant. The court concluded that McIlrath was not stopped until Agent Poore told him to sit down, but at that point McIlrath was effectively arrested without probable cause. But the court also concluded that the marijuana would inevitably have been discovered and denied McIlrath’s motion to suppress.

DISCUSSION
McIlrath contends that the trial court erred in applying the inevitable discovery rule because it failed to identify a lawful means of discovery that was truly independent of the unlawful arrest. He further contends that the extended border doctrine was inapplicable and that a warrantless canine sniff of his truck violated article I, section 7 of our state constitution. We decline to consider either argument as we affirm the trial court on the alternative ground of a lawful Terry stop.[3]

An officer may stop and temporarily detain a person if the officer has a reasonable suspicion that the suspect is engaged in criminal activity.[4] A Terry stop is justified if the officer can point to specific, articulable facts which, taken together with the reasonable inferences, reasonably warrant the intrusion.[5] When reviewing an investigatory stop, the court considers the totality of the circumstances in light of the officer’s training and experience.[6] Where officers are acting in concert, the court considers the sum of the information possessed by the police.[7]

In determining reasonable suspicion in border smuggling cases, relevant factors include: (1) characteristics of the area; (2) proximity to the border; (3) usual patterns of traffic and time of day; (4) previous drug smuggling in the area; (5) behavior of the driver, including obvious attempts to evade officers; (6) appearance or behavior of passengers; (7) model and appearance of the vehicle; and (8) officer experience.[8]

Here, the customs agents knew that McIlrath gave vague and suspicious responses at the border, which prompted a secondary inspection and `follow-out;’ McIlrath drove into a remote area very near the border that was inconsistent with his stated destination; he drove using counter-surveillance techniques, apparently attempting to determine whether he was being followed and to evade any followers; he drove onto a trail known for drug smuggling; and after leaving the trail, he drove an excessive speed and directly to his destination in VanZandt. Considering all these circumstances, in light of the customs agents’ experience in investigating drug smuggling, the agents had a reasonable suspicion that McIlrath was engaged in criminal activity.

A detention must not exceed the duration and intensity necessary to confirm or dispel the officer’s suspicion.[9] We conclude that the agents did not exceed the permissible scope of an investigative detention. In making this determination, we consider the purpose of the stop, its duration, and the degree of physical intrusion on McIlrath’s liberty.[10]

McIlrath stopped in the parking lot of his own accord and was not detained until Agent Poore directed him to sit down on a parking barrier.

The purpose of the detention was to dispel or confirm the agent’s suspicion that McIlrath was involved in drug smuggling. The agent’s subsequent actions were all directed to this purpose.

The intrusion upon McIlrath’s liberty was greater than a typical Terry stop, which often is limited to a frisk for weapons and brief questioning. But under certain circumstances, measures such as handcuffing, secluding, and drawing guns on a suspect may be appropriate.[11] The mere handcuffing of a suspect does not transform a lawful investigative detention into an arrest requiring probable cause.[12] Given McIlrath’s earlier evasive actions, his excessive driving speed, and the remoteness of the area, all of which heightened typical concerns for officer safety, it was reasonable to handcuff McIlrath and then place him in the patrol vehicle pending arrival of additional agents and further investigation.

The duration of McIlrath’s detention raises a closer issue. But we conclude that it was reasonable under the circumstances. If an investigative stop based on reasonable suspicion continues too long, it will ripen into a de facto arrest that must be based on probable cause.[13] In United States v. Place,[14] law enforcement agents stopped the defendant after his arrival in an airport and seized his luggage for 90 minutes to take it to a narcotics dog for a sniff test. The Supreme Court held that the length of the detention was unreasonable.[15]

Subsequently, in United States v. Sharpe,[16] the court explained that the rationale of the court’s conclusion in Place `was premised on the fact that the police knew of respondent’s arrival time for several hours beforehand, and the Court assumed that the police could have arranged for a trained narcotics dog in advance and thus avoided the necessity of holding respondent’s luggage for 90 minutes.’ In other words, police officers did not diligently pursue their investigation.

In Sharpe, the court held that a 20-minute detention of a defendant whose truck was stopped on suspicion of marijuana trafficking was reasonable. During this time, the Drug Enforcement Administration agent was enlisting the help of local police officers and attempting to contact a fellow officer involved in a simultaneous stop of a car that had been driving in tandem with the truck. The court noted that case law imposes no rigid time limit on Terry stops,[17] and explained:

In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant. A court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing. . . . The question is not simply whether some [less intrusive] alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it.[18]

Investigating officers must be allowed to `graduate’ their responses to the demands of the situation they face.[19]

It was reasonable for Agent Poore, after initially contacting and handcuffing McIlrath, to wait five minutes until other officers arrived. Shortly thereafter, Agent Poore looked in the truck and saw two duffel bags. About the same time, he requested the canine unit. Agent Kohlman testified that when he received the call requesting a canine unit, he was traveling to Bellingham.

He immediately returned home, picked up the dog and a government vehicle, and traveled directly to VanZandt. Meanwhile, agents on the scene contacted the Sumas Port of Entry and verified the description of the smaller bag that was in the truck when McIlrath crossed the border. The agents promptly sought a search warrant, although it took some time to accomplish because the mobile phones did not work in that location. The total time from the initial contact with McIlrath to obtaining the search warrant was 44 minutes. One minute later the dog arrived and alerted on McIlrath’s truck. Under the circumstances, particularly the remoteness of the location, the length of the detention was not unreasonable. The officers proceeded cautiously, but without unnecessary delay.[20]

Considering all the circumstances, in light of the customs agents’ experience in investigating drug smuggling, the agents had a reasonable suspicion that McIlrath was engaged in criminal activity and the detention did not exceed the duration and intensity necessary to confirm or dispel their suspicion.

Affirmed.