101 Wash. App. 732 | Wash. Ct. App. | 2000
Relying on State v. Ladson, 138 Wn.2d 343, 979 P.2d 833 (1999), and State v. DeSantiago, 97 Wn. App. 446, 983 P.2d 1173 (1999), Minh Hoang contends that his possession of cocaine conviction must be reversed because the cocaine was discovered as the result of a pretextual traffic stop in violation of article I, section 7 of the Washington Constitution. But the trial court’s unchallenged findings of fact fully support its conclusion that this traffic stop was not unconstitutionally pretextual, and it is clear from the record that the trial court considered the totality of the circumstances in making that determination, as required by Ladson. Accordingly, we affirm.
FACTS
On November 6, 1997, Seattle Police Officer Aaron Kamalu was on routine patrol duty. He had come on duty at
As the officer watched, a maroon-colored Honda Civic slowly drove southbound along Rainier Avenue South, and pulled to a stop next to a group of individuals. These individuals approached the car, and appeared to talk with the driver. A moment or two later the vehicle moved slowly toward another group of individuals, and again pulled to a stop. These individuals also approached the car, and a conversation ensued. The officer suspected, based on these observations and his experience patrolling this neighborhood, that a drug deal might be going down. But he saw no exchanges take place. As the officer continued to observe, the vehicle started moving again and made a turn onto South Garden Street. That street ends in a cul-de-sac. The vehicle turned around and proceeded back toward Rainier Avenue South. The vehicle stopped at the stop sign that controls that intersection, and then made a left-hand turn, northbound onto Rainier Avenue South, without signaling. The officer activated his overhead rotating lights and front flashers and pulled in behind the Honda Civic, bringing it to a stop within about a block.
Minh Hoang, a Vietnamese man, was the driver of the Honda Civic. He was alone in the car. When the officer approached the driver’s side, he noticed that Hoang was holding his right arm across his body with his right hand near his left hip. This seemed odd to the officer. The officer also noticed that the Honda Civic had no license plates.
Officer Kamalu then obtained the vehicle identification number for the Honda Civic, locked the vehicle, and left it legally parked. He drove Hoang to the precinct station and booked him for possession of cocaine. The officer did not issue a citation for failing to signal the left-hand turn, driving while license suspended, or driving without license plates.
The State charged Hoang with possession of cocaine. At the CrR 3.6 suppression hearing, Officer Kamalu testified to the above facts. In response to questioning, he explained that he pulled Hoang over for failing to signal a left turn. But for the failure to signal the turn, the officer testified that he would not have stopped the vehicle. In response to further questioning, he explained that it was not his practice to issue a citation for traffic violations where felony charges would ultimately be filed.
Defense counsel argued that the stop for the traffic infraction was pretextual. Because the suppression hearing was held some five months before the Supreme Court handed down its opinion in State v. Ladson, 138 Wn.2d 343, 979 P.2d 833 (1999), neither counsel articulated the “totality of the circumstances” requirement found in that case, and both sides argued that the question before the court was whether the traffic stop was objectively reasonable. See id. at 359. In summing up, the trial court in this case found that the traffic stop was objectively reasonable, but also noted the following circumstances supporting the ruling that the stop was not pretextual:
[T]he officer did nothing to depart from [normal procedure] in making a stop to enforce traffic regulations... . [W]hen he made contact with the Defendant, it was very clear in the testimony that the officer did not inquire about anything except [ ] questions that would be asked on a routine traffic stop: Do you have a driver’s license, can I see your registration and your insurance [ ] certificate. There were no questions about what he was doing there at that time of the morning.
Report of Proceedings at 129-30.
The trial court subsequently entered the following written finding of fact:
[Officer] Kamalu was acting within his normal traffic control duties when he acted by pulling the defendant over for failing to signal. The court finds that [Officer] Kamalu would have made the same decision to contact the defendant in the course of a general traffic patrol. The court finds that there is no issue of a “pretext” stop on this record.
Clerk’s Papers at 26.
DISCUSSION
Hoang assigns error to that portion of the trial court’s CrR 3.6 findings set forth above, but only insofar as the finding may be construed as a conclusion of law, and he does not assign error to any of the trial court’s other findings of fact. Unchallenged findings of fact following a CrR 3.6 suppression hearing are accepted as verities upon appeal, and will not be reviewed by the appellate court. State v. Hill, 123 Wn.2d 641, 644-47, 870 P.2d 313 (1994). “[O]ur review in this case is limited to a de novo determination of whether the trial court derived proper conclusions of law from those [unchallenged] findings.” State v. Armenta, 134 Wn.2d 1, 9, 948 P.2d 1280 (1997) (citing Hill, 123 Wn.2d at 647).
“[P] retextual traffic stops violate article I, section 7 [of the Washington Constitution] because they are seizures absent the ‘authority of law’ which a warrant would bring.” Ladson, 138 Wn.2d at 358. The essence of every pretextual traffic stop is that “the police are pulling over a citizen, not to enforce the traffic code, but to conduct a criminal investigation unrelated to the driving.” Id. at 349. “When determining whether a given stop is pretextual, the court should consider the totality of the circumstances, including both the subjective intent of the officer as well as the objective reasonableness of the officer’s behavior.” Id. at 358-59. The
In Ladson, two police officers working on proactive gang patrol admitted that, although they did not make routine traffic stops while on gang patrol, they used traffic infractions as a means to pull people over in order to initiate contact and questioning regarding unrelated criminal activity — indeed, they followed people who aroused their suspicions, hoping to see a traffic infraction in order to have a legal reason to pull them over. Id. at 346. The trial court in that case factually found that one of the officers selectively enforced traffic violations depending on whether he believed there was a potential for intelligence-gathering in such stops. Id. After following a vehicle being driven by an individual the officers believed might be involved in drug dealing, for a number of blocks, the officers found a legal reason to pull the vehicle over: the license tabs had expired. Id. Upon stopping the vehicle, the officers learned that the driver of the vehicle had a suspended driver’s license. They arrested the driver, and searched the vehicle incident to that arrest. Id. Finding a handgun under a jacket belonging to the passenger, the officers arrested him, as well, and searched him, finding several baggies of marijuana. Id. at 346-47. The trial court, finding the stop to have been pretextual, suppressed the evidence. Id. at 347. The Court of Appeals reversed. Id. The Supreme Court reversed the Court of Appeals, reinstating the trial court’s ruling. Id. at 360.
In this case. Hoang argues that the facts are indistinguishable from those in Ladson and DeSantiago; therefore, reversal is required as a matter of constitutional law. We disagree.
The trial court in Ladson found the stop to be pretextual and suppressed the evidence. Ladson, 138 Wn.2d at 347. The Court of Appeals reversed the trial court and the Supreme Court reversed the Court of Appeals. Id. at 360. In DeSantiago, the trial court found the officer’s subjective
It is clear from the record that the trial court did consider the totality of the circumstances, including both the subjective intent of the officer and the objective reasonableness of his behavior — this notwithstanding the fact that Ladson was not handed down until some five months after the suppression hearing in this case, and notwithstanding the fact that both counsel argued that the Chapin objective reasonableness standard applied. See Ladson, 138 Wn.2d at 358-59; Chapin, 75 Wn. App. at 464. In summing up its oral ruling, the trial court observed that, upon making the stop, the officer asked only the questions that would be asked on a routine traffic stop: Do you have a driver’s license? May I see the vehicle registration? May I see the certificate of insurance? He asked no questions regarding what Hoang was doing in that area at that time of morning. We also observe that, unlike Ladson and DeSantiago, here, the officer did not follow Hoang hoping to find a legal reason to stop him: Hoang made a left-hand
Hoang’s position in this appeal is tantamount to a contention that this court may look behind an unchallenged finding of fact that the traffic stop in question would have been made in any event, and conclude instead as a matter of law that the stop was unconstitutionally pretextual merely because the officer who made the stop first saw the vehicle while observing a narcotics hot spot and saw the driver of the vehicle engage in behavior that could be entirely innocent (such as asking for directions) or not entirely innocent (such as asking if drugs were for sale)— and because the officer, not being entirely naive, suspected that the behavior was not entirely innocent. But Ladson does not stand for that proposition. Under Ladson, even patrol officers whose suspicions have been aroused may still enforce the traffic code, so long as enforcement of the traffic code is the actual reason for the stop. What they may not do is to utilize their authority to enforce the traffic code as a pretext to avoid the warrant requirement for an unrelated criminal investigation. Ladson, 138 Wn.2d at 357-58.
That Officer Kamalu ultimately elected not to cite Hoang for turning without signaling, or for driving while his license was suspended, or for driving without license plates on the car, and instead to book him only for unlawful possession of cocaine are among the factors to be considered in determining the officer’s subjective intent for making the stop, but are not dispositive. Here, even up to the date of the suppression hearing, the prosecutor was still considering the possibility of charging Hoang with driving while license suspended in the second degree — but ultimately decided not to do so. We find nothing in Ladson that limits prosecutorial discretion with respect to charging decisions, or that requires police to issue every conceivable citation as a hedge against an eventual challenge to the constitutionality of a traffic stop allegedly based on pretext.
Coleman and Appelwick, JJ., concur.
Review denied at 142 Wn.2d 1027 (2001).
Miranda v. Arizona, 384 U.S. 436,86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A.L.R.3d 974 (1966).