STATE OF WASHINGTON, Rеspondent, v. DAVID JOSEPH BROWN, Petitioner.
No. 35304-4-III
COURT OF APPEALS, DIVISION III, STATE OF WASHINGTON
JANUARY 22, 2019
FILED JANUARY 22, 2019 In the Office of the Clerk of Court WA State Court of Appeals, Division III
ORDER AMENDING OPINION
IT IS ORDERED the opinion filed January 17, 2019, is amended as follows:
The first paragraph, second sentence on page one that reads:
This appeal asks if this statute compels a driver, who moved left from a middle lane to a dedicated left turn lane while signally his intention to change lanes, to reactivate his turn signal before turning left from the reserved turn lane.
SHALL BE AMENDED TO READ: This appeal asks if this statute compels a driver, who moved left from a middle lane to a dedicated left turn lane while signaling his intention to change lanes, to reactivate his turn signal before turning left from the resеrved turn lane.
PANEL: Judges Fearing, Lawrence-Berrey, Pennell
FOR THE COURT:
ROBERT LAWRENCE-BERREY,
Chief Judge
STATE OF WASHINGTON, Respondent, v. DAVID JOSEPH BROWN, Petitioner.
No. 35304-4-III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
JANUARY 17, 2019
FILED JANUARY 17, 2019 In the Office of the Clerk of Court WA State Court of Appeals, Division III
FEARING, J. —
FACTS
We borrow most facts from the district court‘s findings of fact. On the evening of March 22, 2015, Trooper Mason Acheson patrolled the streets of Kennewick. At 10:15 p.m., while traveling eastbound on Clearwater
Shortly after entering Clearwater Avenue, David Brown signaled his intent to change lanes, and to move to the left or inner eastbound lane, by activating his left turn signal that blinked numerous times. Brown entered the inner lane of the two lanes.
Soon David Brown approached the intersection of Clearwater Avenue and Highway 395, where the eastbound lanes widen to three lanes. The innermost of the three lanes becomes a designated left turn only lane. Brown again wished to change lanes so he could turn left. Brown signaled his intent to move left into the dedicated turn lane. Brown maneuvered his vehicle into the dedicated turn lane, at which point the left turn signal cycled-off.
The parties employ and the district court incorporated the term “cycle off,” a term with which we were not familiar, before this appeal, in the context of vehicle signal lights. The turn signal for most cars includes a self-сancelling feature that returns the horizontal signal lever to the neutral, or no signal, position as the steering wheel approaches the straight forward position after completion of a turn. We assume “cycle off” refers to the activation of the self-cancelling feature. Most cars now incorporate the additional turn signal feature of a spring-loaded momentary signal position activated when the driver partially depresses or raises the horizontal stalk. The signal then operates however long the driver holds the lever partway toward the left or right turn signal detent. A driver typically lowers or raises the spring-loadеd momentary signal feature when changing lanes as opposed to executing a turn from one street to another. The parties’ nomenclature and the district court‘s findings of fact suggest David Brown did not employ the momentary signal when changing lanes on the second occasion while traveling east on Clearwater Avenue.
David Brown stopped his vehicle in the dedicated left turn lane while awaiting the light to turn green. He did not reactivate his turn signal. Trooper Mason Acheson pulled behind Brown. No other traffic was present on eastbound Clearwater Avenue. When the light turned green, Brown turned left onto northbound Highway 395. Trooper Mason Acheson then actuated his patrol vehicle‘s emergency light and stopped Brown.
Trooper Mason Acheson stopped David Brown based on Brown‘s crossing the eastbound lanes’ divider line during his turn from Huntington Street onto Clearwater Avenue. He did not stop Brown based on Brown‘s failure to signal his left turn onto Highway 395. After stopping Brown, Trooper Acheson investigated Brown for suspicion of driving under the influence of intoxicants. Acheson arrested Brown for driving under the influence.
PROCEEDINGS
The State of Washington charged David Brown with driving while under the influence of intoxicants. Brown filed a motion to suppress evidence garnered from the stop of his car by Trooper Mason Acheson. He argued that the state trooper lacked cause to stop his vehicle. During the suppression hearing, the district court entertained testimony from Mason Acheson.
The State principally contended, before the district court, that State Trooper Mason Acheson possessed probable cause to stop David Brown because of Brown‘s crossing of the dashed dividing line between the two eastbound lanes on Clearwater Avenue when turning right from Huntington Street. The district court concluded that, because Brown, as reasonably as practical, kept his vehicle within his lane when turning right onto Clearwater Avenue, the crossing of the dividing line on the avenue did not violate the traffic code. Therefore, Trooper Acheson
The State of Washington moved for reconsideration and added, based on the suppression hearing testimony of Trooper Mason Acheson, that Acheson had additional reason to stop David Brown since Brown violated
With the motion for reconsideration, the district court needed to determine if David Brown‘s failure to activate his turn signal before turning left onto the highway afforded probable cause. The district court reasoned:
3. Based upon the evidence presented, there was insufficient time and distance for the Defendant to comply with the signal statute while executing the lane change to enter the dedicated left turn lane at the intersection of Clearwater Ave. and SR 395. The Defendant complied with the signal statute as best he could and due to the impossibility to comply with the signal statutes requirement of signaling for 100 feet prior to making a lane change the Defendant cannot be in violation of said provision when it was impossible to comply with such.
4. The intent of turn signals is to notify other drive[r]s where the Defendant was intending to travel. Trooper Acheson‘s testimony сonfirmed that not only did he kn[o]w where the Defendant intended to travel but in fact the Defendant did travel in the direction Trooper Acheson suspected he would go and[,] therefore, [t]he Defendant wasn‘t required to re-indicate the direction he was turning from the dedicated left turn lane at the intersection of east bound Clearwater Ave. and north bound SR 395 as the Defendant had already signaled his intent to enter that lane prior to entering it.
Clerk‘s Papers (CP) at 13. The district court concluded that, because Brown violated no traffic law, Trooper Acheson lacked probable cause to initiate the traffic stop. The district court supprеssed all evidence gained from the stop and thereafter dismissed the prosecution.
The State of Washington appealed the dismissal to the superior court. The superior court adopted the district court‘s findings of fact. Nevertheless, the superior court held that the district court erred when suppressing the evidence of intoxication gathered after the traffic stop. According to the superior court, David Brown violated
David Brown sought discretionary review, before this court, of the superior court‘s decision. Our court commissioner granted review. Comm‘r‘s Ruling, State v. Brown, No. 35304-4-III (Wash. Ct. App. Oct. 17, 2017).
LAW AND ANALYSIS
In response to David Brown‘s appeal, the State does not argue that Trooper Mason Acheson held probable cause to stop Brown based on his clumsy right turn onto Clearwater Avenue from Huntington Street. Therefore, this appeal addresses only whether Acheson possessed probable cause to stop Brown becausе of Brown‘s failure to signal his left turn onto Highway 395.
We previously outlined the facts based on the district court‘s findings of fact as adopted by the superior court. Neither party challenges the findings of fact before this court. Unchallenged findings of fact are verities on appeal. State v. Luther, 157 Wn.2d 63, 78, 134 P.3d 205 (2006).
A law enforcement officer may conduct a warrantless traffic stop under article I, section 7 of the Washington Constitution as an investigative stop if based on at least a reasonable articulable suspicion of either criminal activity or a traffic infraction. State v. Arreola, 176 Wn.2d 284, 292-93, 290 P.3d 983 (2012). We must determine
The primary issue on appeal is whether, under
When signals required—Improper use prohibited. (1) No person shall turn a vehicle or move right or left upon a roadway unless and until such movement can be made with reasonable safety nor without giving an appropriate signal in the manner hereinafter provided.
(2) A signal of intention to turn or move right or left when required shall be given continuously during not less than the last one hundred feet traveled by the vehicle before turning.
(Emphasis added.) The issue on appeal demands that we indirectly determine what constitutes an appropriate signal “in the manner hereinafter provided” under subsection 1 of the statute and directly assess “when” a signal is “required” under subsection 2 of the statute.
David Brown contends that the statute did not require him to reactivate his left turn signal as he had already indicated his intent to turn left when he signaled to enter the dedicated turn lane and entered the lane. Brown emphasizes that Trooper Mason Acheson knew where Brown intended to travel, and Brown executed the turn with reasonable safety.
The State argues that the heading of
When interpreting statutory provisions, this court primarily seeks to effectuate the intent of the legislature. State v. Sullivan, 143 Wn.2d 162, 174-75, 19 P.3d 1012 (2001). In attempting to discern the legislative intent behind
Legislative History
The Washington Legislature patterned Title 46 RCW after the 1962 Uniform Vehicle Code (UVC). City of Seattle v. Williams, 128 Wn.2d 341, 349 n.9, 908 P.2d 359 (1995). The 1965 version of
A signal of intention to turn right or left when required shall be given continuously during not less than the last 100 feet traveled by the vehicle before turning.
Uniform Vehicle Code § 11-604(b) (1968) (emphasis added). In 1975, the Washington Legislature added the words “or move” to arrive at the present-day form of the statute, “A signal of intention to turn or move right or left . . . .” LAWS OF 1975, ch. 62, § 30 (emphasis added).
At least twenty states have adopted language identical to UVC § 11-604(b). Nat‘l Comm. on Uniform Traffic Laws & Ordinances, TRAFFIC LAWS ANNOTATED § 11-604(b), statutory annot. (1979) (TLA). Five other states adopted the identical language absent the phrase “when required.” TLA § 11-604(b), statutory annot. n.1 (1979). With regard to the difference between those versions with the phrase “when required” and
Foreign Decisions
We review decisions emphasized by the parties. David Brown forwards State v. Dixon, 206 S.W.3d 587 (Tex. Crim. App. 2006) and Bowers v. State, 221 Ga. App. 886, 473 S.E.2d 201 (1996) as supportive of his position. The State highlights Wehring v. State, 276 S.W.3d 666 (Tex. App. 2008), State v. Bea, 318 Or. 220, 864 P.2d 854 (1993), and United States v. Garcia, 178 F. Supp. 3d 1250 (S.D. Ala. 2016) in support of its position. We adjudge Bowers and Garcia tо best delineate the parties’ respective positions, and we discuss those cases now. We analyze the other three decisions in an appendix because of important distinctions from this appeal present in the reported cases.
In Bowers v. State, 221 Ga. App. 886, 473 S.E.2d 201 (1996), the Georgia intermediate appellate court addressed whether Deputy Todd made a lawful traffic stop. As William Gilliam drove a van on an interstate highway, he changed lanes without signaling. Deputy Todd saw the lane change from a distance of one hundred yards. No other vehicles were present. The State presented no evidence that Gilliam changed lanes unsafely. After the stop, a drug dog smelled cocaine in the trunk of the stopped van. On prosecution for possession of a controlled substance, driver Gilliam and his passenger Sheena Bowers filed a motion to suppress evidence of the controlled substance on the basis of an unlawful stop.
A Georgia statute declared:
(a) No person shall . . . change lanes or move right or left upon a roadway unless and until such movement can be made with reasonable safety. No person shall so turn any vehicle without giving an appropriate and timely signal in the manner provided in this Code section.
(b) A signal of intention to turn right or left or change lanes when required shall be given continuously for a time sufficient to alert the driver of a vehicle proceeding from the rear in the same direction or a driver of a vehicle approaching from the opposite direction.
The federal district court in, United States v. Garcia, 178 F. Supp. 3d 1250 (S.D. Ala. 2016), rejected the interpretation rendered in Bowers of the turn signal statute, while faulting the Georgia appellate court for overlooking the history behind the Uniform Vehicle Code. The Alabama version of the UVC-patterned signal requirement read:
(a) No person shall turn a vehicle or move right or left upon a roadway unless and until such movement can be made with reasonable safety nor without giving an appropriate signal in the manner hereinafter provided.
(b) A signal of intention to turn right or left when required shall be given continuously during not less than the last 100 feet traveled by the vehicle before turning.
Words and Structure of RCW 46.61.305
We now examine the precise language of
(1) No person shall turn a vehicle or move right or left upon a roadway unless and until such movement can be made with reasonable safety nor without giving an appropriate signal in the manner hereinafter provided.
(2) A signal of intention to turn or move right or left when required shall be given continuously during not less than the last one hundred feet traveled by the vehicle before turning.
(Emphasis added.)
In reading the legislature‘s expressions in
As previously noted, the State argues that
The State in essence contends that the words “when required,” as set forth in
We note that the drafters of the Uniform Vehicle Code amended the relevant section in 1962. The Washington State Legislature amended
The dissent emphasizes the Uniform Vehicle Code drafters’ comment that the words “when required” lack importance. The dissent‘s emphasis might triumph if the code
The United States v. Garcia holding assumes that the legislature committed a mistake by keeping “when required” within
We cannot ignore the words “when required,” found in
In addition, continuous use of a turn signal prior to a turn is not always feasible, given the mechanical nature of turn signal devices. We note that David Brown might have encountered difficulty in continuously signaling when he moved to the left-turn-only lane. When he moved into the left turn lane from what became the middle lane and thereafter straightened his car, his turn signal “cycled off” or ended. He would have needed to activate his signal again, but some time, no matter how short, would have elapsed between the ending of the signal and its recommencement. The district court noted this phenomenon in its ruling. Of course, Brown could have employed the momentary blinker function as he moved from lane to lane and immediately depressed the standаrd signal function once in the dedicated turn lane without significant cessation in the signaling. We doubt, however, that the legislature wished to distinguish between the momentary spring-loaded function and the standard function of the turn signal when determining the need to signal or that the legislature investigated the length in the pause of continuous signaling resulting from the driver employing the different functions. We doubt the legislature expected the driver to know that he or she should use the momentary function when moving into the dedicated turn lane and then switch to the standard function once in the turn lane.
Mistake in Law
The State argues that, even if we rule that David Brown did not violate
David Brown relies on article I, section 7 of the Washington Constitution, in addition to the Fourth Amendment of the United States Constitution. The Washington Supreme Court has never incorporated an officer‘s innocent mistake of fact or good faith into the reasonable suspicion analysis for purposes of the state constitution. State v. Afana, 169 Wn.2d 169, 179-80, 233 P.3d 879 (2010); State v. Creed, 179 Wn. App. 534, 541-43, 319 P.3d 80 (2014); State v. Rose, 75 Wn. App. 28, 35-36, 876 P.2d 925 (1994), rev‘d on other grounds, 128 Wn.2d 388, 909 P.2d 280 (1996). The United States Constitution prohibits unreasonable searches and seizures; whereas, our state constitution goes further and requires actual authority of law before the State may disturb the individual‘s private affairs. State v. Day, 161 Wn.2d 889, 893, 168 P.3d 1265 (2007). Therefore, we conclude that the Washington Supreme Court would not permit a mistake of law to be grounds for reasonable suspicion and rule accordingly. The State provides no case law to the contrary.
CONCLUSION
We reverse the superior court. We reinstate the district court‘s grant of David Brown‘s motion to suрpress and the district court‘s dismissal of the charge of driving while under the influence.
Fearing, J.
I CONCUR:
Pennell, J.
APPENDIX
The reviewing court, in a muddled decision in State v. Dixon, 206 S.W.3d 587 (Tex. Crim. App. 2006), upheld the suppression of evidence gathered during a traffic stop. The court held the stop leading to the discovery of the controlled substance to be unlawful. The arresting officer observed that Richard Dixon executed a right turn from a right turn lane and later a left turn from a left turn lane, each time without signaling. David Brown contends that Dixon stands for the proposition that a turn signal is not required when the turn is made from a dedicated left or right turn lane. We disagree. The trial court and the reviewing court focused on the officer trailing Dixon for 3.2 miles after the allegedly unlawful turns. The ruling implies thаt the officer conducted a pretextual stop.
In Wehring v. State, 276 S.W.3d 666, 670 (Tex. App. 2008), the Texas court disagreed with the holding in State v. Dixon. The Wehring court held that a turn signal is required for one hundred feet even when the driver is in a dedicated turn lane. Jeremy Wehring failed to employ a turn signal when turning from a dedicated right turn lane. The State charged Wehring with driving while intoxicated. Wehring alleged that the initial traffic stop was illegal. The Texas statute read:
“(a) An operator shall use the signal authorized by Section 545.106 to indicate an intention to turn, change lanes, or start from a parked position. “(b) An operator intending to turn a vehicle right or left shall signal continuously for not less than the last 100 feet of movement of the vehicle before the turn.”
Wehring v. State, 276 S.W.3d at 670 (quoting
In State v. Bea, 318 Or. 220, 864 P.2d 854 (1993), the State charged Randall Bea with possession of a controlled substance and failure to present a driver‘s license after a law enforcement officer stopped him for failurе to signal a traffic turn. The officer followed Bea as he drove north on Kerby Avenue. After several blocks, Bea came to an L-shaped intersection of Kerby Avenue and Sumner Street. Kerby terminated at its intersection with Sumner. Sumner also terminated at the intersection. No stop sign controlled the intersection. Bea went left from Kerby onto Sumner, the only direction in which he could have continued to travel on a public street. He did not signal.
One Oregon statute,
“(1) A person commits the offense of making an unlawful or unsignaled turn if the person is operating a vehicle upon a highway and the person turns the vehicle right or left when:
“. . . .
“(b) The person fails to give an appropriate signal continuously during not less than the last 100 feet traveled by the vehicle before turning.”
State v. Bea, 318 Or. at 225. A second Oregon statute, former
“(1) A person commits the offense of failure to use an appropriate signal for a turn, lane change or stop if the person is operating a vehicle that is turning, changing lanes, stopping or suddenly decelerating and the person does not make the appropriate signal under ORS 811.395 [describing hand signals and signal lights].”
State v. Bea, 318 Or. at 226. Neither statute contained the words “when required.”
The Oregon Court of Appeals, in State v. Bea, concluded that former
The Oregon Supreme Court reversed the state Court of Appeals in State v. Bea. The Supreme Court noted that neither
LAWRENCE-BERREY, C.J. (dissenting) — A court‘s fundamental objective when interpreting a statute is to determine and give effect to the legislature‘s intent. State v. Larson, 184 Wn.2d 843, 848, 365 P.3d 740 (2015). The majority journeys to other states to ascertain our legislature‘s intent. No such journey is required when a plain meaning analysis of
When signals required—Improper use prohibited. (1) No person shall turn a vehicle or move right or left upon a roadway unless and until such movement can be made with reasonable safety nor without giving an appropriate signal in the manner hereinafter provided.
(2) A signal of intention to turn or move right or left when required shall be given continuously during not less than the last one hundred feet traveled by the vehicle before turning.
(Second emphasis added.)
“We look first to the plain language of the statute as ‘[t]he surest indication of lеgislative intent.‘” Larson, 184 Wn.2d at 848 (quoting State v. Ervin, 169 Wn.2d 815, 820, 239 P.3d 354 (2010)). To effect legislative intent, we read the statute as a whole and harmonize its provisions by reading them in context with related provisions. Segura v. Cabrera, 184 Wn.2d 587, 593, 362 P.3d 1278 (2015).
If the plain language is unambiguous, subject to only one reasonable interpretation, our inquiry ends. State v. Velasquez, 176 Wn.2d 333, 336, 292 P.3d 92 (2013). A statute is not ambiguous merely because multiple interpretations are conceivable. Id. When the plain meaning of statutory language is unambiguous, we do not use secondary tools of construction. Id.
The State argues that subsections (1) and (2) can be harmonized by reading them in context with one another. I agree. The above italicized words make clear that subsection (1) explains when signaling is required, and subsection (2) explains the manner of signaling. Subseсtion (1) states that signaling is required when a person “turn[s] a vehicle or move[s] right or left upon a roadway.”
Here, David Brown failed to signal before he turned from one road onto another road. I would conclude that Mr. Brown violated
Although this is all that needs to be said, an additional rule for giving statutory language its plain meaning also is satisfied by this construction. The additional rule requires that we “‘construe statutes [so] that all of the language is given effect.‘” Lake v. Woodcreek Homeowners Ass‘n, 169 Wn.2d 516, 526, 243 P.3d 1283 (2010) (quoting Rest. Dev., Inc. v. Cananwill, Inc., 150 Wn.2d 674, 682, 80 P.3d 598 (2003)). My proffered construction does give meaning to the statutory phrase “when required.” “When required” refers back to subsection (1). Although this meaning gives the phrase less importance than what the majority gives it, the code drafters wrote that the phrase “is not important.” Majority at 10. When the code drafters themselves write that a phrase is unimportant, legislative intent is effectuated by giving less import to the unimportant.
Lawrence-Berrey, C.J.