No. 33369-4-II.The Court of Appeals of Washington, Division Two.
May 31, 2006.
Appeal from a judgment of the Superior Court for Clark County, No. 05-1-00110-1, Roger A. Bennett, J., entered May 27, 2005.
Affirmed in part and remanded by unpublished opinion per Houghton, J., concurred in by Bridgewater and Penoyar, JJ.
Counsel for Appellant(s), Lisa Elizabeth Tabbut, Attorney at Law, 1402 Broadway St, Longview, WA 98632-3714.
Counsel for Respondent(s), Bernard Frank Veljacic, Clark County Prosecutors Office, 1013 Franklin St, PO Box 5000, Vancouver, WA 98666-5000.
HOUGHTON, P.J.
Robin Raymond Schumacher appeals his conviction of possession of methamphetamine with intent to deliver, arguing that the trial court erred in denying his motion to suppress and in entering his offense as a class B felony in his judgment and sentence. We affirm the conviction but remand for correction of the judgment and sentence.
Facts
On January 11, 2005, shortly after 10:00 p.m., Washougal Police Officer Geoffrey Reijonen was on patrol in a parking lot that served Long’s Drugs and other businesses. He was stopped by a male and female wearing Long’s Drug employee uniforms. Reijonen had seen the two come out of the store at closing time a few minutes earlier. They told the officer that a white pickup truck with a long CB antenna had been parked beside Long’s at approximately 5:00 p.m. and then in front of the store at 8:00 p.m. and that it had remained there until they left at 10:00 p.m. They could see two people in the truck.
Reijonen noticed Officer Tyson Ferguson driving into the parking lot and radioed him about the truck. Ferguson saw a white pickup with a long CB antenna and two occupants leaving the parking lot. He followed the truck, which turned onto a street and then immediately back into a Minit Mart parking lot before driving through that lot to a different street. Ferguson lost sight of the truck, but by that time, Reijonen was also in pursuit. Both officers thought that by driving out of one parking lot and then immediately into another, the truck was trying to be evasive.
When Reijonen stopped the truck, he discovered that Schumacher was driving with a suspended license and that his passenger had an outstanding warrant. He arrested them, searched the truck, and discovered contraband.
The State charged Schumacher by amended information with unlawful possession of methamphetamine hydrochloride with intent to deliver within a school zone.[1] He filed a motion to suppress, arguing that the stop of his truck was unlawful. The trial court disagreed, concluding that Reijonen’s suspicion that Schumacher was `casing’ the premises preparatory to a commercial burglary was reasonable and that the facts were sufficient to justify the stop.
At trial, the State presented evidence showing that the stop of the truck occurred within 1,000 feet of the perimeter of an elementary school. The jury found Schumacher guilty as charged and included a special verdict for the school zone enhancement.
The parties recognized that Schumacher’s offense was a class C felony, and the trial court imposed a low-end standard range sentence to run consecutively to the 24-month sentence enhancement. Schumacher now appeals.
Analysis The Terry Stop
Schumacher argues initially that the trial court erred in denying his motion to suppress the drug evidence seized from his truck because there were insufficient grounds to justify the investigatory or Terry stop. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
To justify a Terry stop, a police officer must be able to “point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” State v. Glover, 116 Wn.2d 509, 514, 806 P.2d 760 (1991) (quoting Terry, 392 U.S. at 21). The level of articulable suspicion necessary to support a Terry stop is `a substantial possibility that criminal conduct has occurred or is about to occur.’ State v. Kennedy, 107 Wn.2d 1, 6, 726 P.2d 445 (1986). Activity that is consistent with both criminal and noncriminal activity may justify a brief detention. Kennedy, 107 Wn.2d at 6; see also State v. Anderson, 51 Wn. App. 775, 780, 755 P.2d 191 (1988) (officer need not rule out all possibilities of innocent behavior before initiating a brief stop and request for identification). `[R]easonableness is measured not by exactitudes but by probabilities.’ State v. Samsel, 39 Wn. App. 564, 571, 694 P.2d 670 (1985).
An officer’s suspicion of criminal activity may be based on information supplied by an informant, but that information must possess sufficient “indicia of reliability.” State v. Seiler, 95 Wn.2d 43, 46-47, 621 P.2d 1272 (1980) (quoting Adams v. Williams, 407 U.S. 143, 147, 32 L. Ed. 2d 612, 92 S. Ct. 1921
(1972)). Generally, citizen informants, as opposed to police informants, are presumed to be reliable sources of information. State v. Wakeley, 29 Wn. App. 238, 241, 628 P.2d 835, review denied, 95 Wn.2d 1032 (1981).
The trial court referred to these principles before setting forth the basis of Reijonen’s suspicion: the truck’s repeated or continual presence by Long’s Drugs with no legitimate known purpose. The court noted that information from two citizens gave rise to this suspicion, and it deemed the two informants reliable and their information credible:
In this case, Officer Reijonen had information from two citizens who, although unidentified, were easily identifiable, as their connection to Long’s Drug store was clear. As apparent employees of Long’s Drug store, the citizens would have a motive to be vigilant for possible threats to the store’s security. Therefore, it was reasonable for Officer Reijonen to assign credibility to the information from the citizens.
Clerk’s Papers (CP) at 33. The court then concluded that this information, combined with Reijonen’s own experience and observations, justified the investigatory stop:
Based upon his experience and his training, Officer Reijonen formed a suspicion of possible `casing’ or surveillance preparatory to a commercial burglary. The driving behavior he observed by the Defendant, specifically driving through the Minit Mart parking lot such that the pickup was concealed from Officer Ferguson, added to Officer Reijonen’s suspicion, as he believed it to be furtive behavior.
Although not an overwhelming case of suspicion of criminal activity, the facts in this case are well articulated by Officer Reijonen and support his conclusion that criminal activity was reasonably likely. Therefore, the evidence meets the standard required for an investigatory detention.
CP at 33.
We agree with this assessment of the evidence. The officer’s past experience contributed to his suspicion, and he was entitled to rely on that experience. State v. Pressley, 64 Wn. App. 591, 596, 825 P.2d 749 (1992); Samsel, 39 Wn. App. at 570-71. Although the evidence of possible criminal activity was not overwhelming, it was sufficient to meet the standards cited above. Reijonen knew specific facts that were consistent with criminal activity to a degree that permitted an investigatory stop of Schumacher’s truck.
Sentencing
Schumacher next asserts that the judgment and sentence requires correction because it incorrectly classifies his offense as a class B felony.
The judgment and sentence nowhere identifies Schumacher’s offense as a class B felony. The error to which he apparently refers is its reference to the maximum penalty for the offense as 10 years, with a $25,000 fine. The State agrees that this maximum penalty was listed in error because Schumacher was convicted of a class C felony under RCW 69.50.401(2)(c), which is punishable by a maximum of five years in prison and a $10,000 fine. RCW 9A.20.021(1)(c).
We reject in part the State’s concession and Schumacher’s claim of error. As the prosecuting attorney explained during sentencing, the maximum penalty was doubled because Schumacher was convicted of possessing methamphetamine with intent to deliver within 1,000 feet of the perimeter of a school. This triggered RCW 69.50.435(1)(j), which provides that possession of a controlled substance with intent to deliver in a school zone is punishable `by a fine of up to twice the fine otherwise authorized by this chapter, . . . or by imprisonment of up to twice the imprisonment otherwise authorized by this chapter, . . . or by both such fine and imprisonment.’
The statute thus results in a new maximum sentence, but it does not require the imposition of an increased sentence. State v. Barajas, 88 Wn. App. 387, 388-89, 960 P.2d 940 (1997), review denied, 134 Wn.2d 1026 (1998). Accordingly, the trial court did not err in imposing a sentence commensurate with the class C felony that Schumacher committed while stating that the maximum term of imprisonment was 10 years, per RCW 69.50.435. The trial court did err, however, in entering a maximum fine of $25,000. The maximum fine allowable under RCW 69.50.435 is $20,000. We also note that the judgment and sentence erroneously indicates that Schumacher’s conviction was the result of a guilty plea rather than a jury verdict.
We remand for correction of these errors in the judgment and sentence but affirm Schumacher’s conviction.
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, J., PENOYAR, J., concur.