Opinion
No. 24893-3-III.
April 26, 2007.
Appeal from a judgment of the Superior Court for Benton County, No. 05-1-00055-8, Carrie L. Runge, J., entered December 30, 2005.
Affirmed by unpublished opinion per Sweeney, C.J., concurred in by Brown and Kulik, JJ.
A police officer may stop a car for a traffic infraction committed in his or her presence or on reasonable grounds to believe that criminal activity is taking place. The defendant in this case almost sideswiped a trooper's parked car while the trooper was finishing a stop with another driver. The trooper followed the car, stopped it, and then cited the driver for driving while under the influence (DUI). We conclude that the near sideswipe justified the stop. We therefore affirm her conviction.
FACTS
Bonnie Harbour nearly sideswiped Washington State Patrol Trooper Shane Nelson as he finished up a routine traffic stop along the side of the road in Benton County, Washington. He was very startled. Her car came so close that he was "surprised that our mirrors didn't hit." Clerk's Papers (CP) at 43. Trooper Nelson's emergency lights had been activated until seconds before the car's sudden swerve to the right. Oncoming traffic would have been able to see the trooper's lights from a considerable distance down the straight stretch of highway.
Trooper Nelson followed Ms. Harbour's car for approximately two miles. He activated his emergency lights just past an exit/on-ramp, and Ms. Harbour pulled over. Ms. Harbour's speech was slow, her eyes were watery and bloodshot, and an obvious smell of intoxicants emanated from her car. Trooper Nelson concluded that she had been drinking.
The State charged Ms. Harbour with DUI. A district court judge concluded that Ms. Harbour was guilty of DUI following a bench trial on stipulated facts. She appealed to the superior court. The superior court judge concluded that:
Ms. Harbour's initial instance of erratic driving caused Trooper Nelson to discern that something was going on with Ms. Harbour. This determination was proper based on the Trooper's training and experience, and giving deference to the Honorable Judge Pratt's consideration of witness credibility at a previous suppression hearing.
The driving displayed by Ms. Harbour was sufficient to justify a stop under either the "community care-taking function" or the "reasonable suspicion" basis for stopping motor vehicles. Further, the stop effectuated by Trooper Nelson was not pretextual given Trooper Nelson's subjective and objective basis for the stop.
CP at 8. We accepted discretionary review.
DISCUSSION
We review the trial court's findings of fact for substantial evidence and its conclusions of law de novo. State v. Santacruz, 132 Wn. App. 615, 618, 133 P.3d 484 (2006); State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999). The question whether particular facts constitute a Fourth Amendment seizure is one of law that we review de novo. Santacruz, 132 Wn. App. at 618; State v. Villarreal, 97 Wn. App. 636, 640, 984 P.2d 1064 (1999) (quoting State v. Armenta, 134 Wn.2d 1, 9, 948 P.2d 1280 (1997)). A traffic stop is a "seizure" for purposes of our constitutional analysis here. Santacruz, 132 Wn. App. at 618-19; State v. Ladson, 138 Wn.2d 343, 350, 979 P.2d 833 (1999). It is, therefore, subject to the criteria of reasonableness set forth in Terry v. Ohio and United States v. Botero-Ospina Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); United States v. Botero-Ospina, 71 F.3d 783, 786 (10th Cir. 1995).
Ms. Harbour does not assign error to any of the court's findings and indeed stipulated to the facts giving rise to the stop. Our only task on appeal is to decide whether those facts support the court's conclusion that the trooper had legal cause to stop her. Santacruz, 132 Wn. App. at 618; Mendez, 137 Wn.2d at 214.
Police may stop a car without a warrant when the officer has probable cause to believe that a traffic infraction has been committed in his presence. See RCW 46.64.030; RCW 10.31.100; State v. Montgomery, 31 Wn. App. 745, 752, 644 P.2d 747 (1982). The probable cause required must be based upon personal knowledge acquired at the time through the officer's senses or proper inferences from that knowledge. Id. Ms. Harbour's challenge here is that the trooper did not have reasonable suspicion to stop her; however, a determination of probable cause necessarily includes the lesser standard, reasonable suspicion required by Terry. United States v. Brignoni-Ponce, 422 U.S. 873, 880, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975).
The trooper experienced (and the court found) erratic driving that resulted in a near collision with Trooper Nelson's car. The fact that the trooper followed her and did not see further erratic driving does not diminish his right to act, and, we conclude, act reasonably based on her earlier driving. Indeed, her driving supports probable cause for at least two infractions — negligent driving and failing to stay inside the fog line. RCW 46.61.140(1), .525(1)(a). We have already passed on the propriety of stopping a vehicle for crossing over the fog line, even without a near collision. State v. Tijerina, 61 Wn. App. 626, 811 P.2d 241 (1991). These are traffic infractions. These infractions were committed in the presence of the trooper. He therefore had the right to stop and issue a citation. RCW 10.31.100; RCW 46.64.030.
Ms. Harbour argues that Trooper Nelson did not actually see her tires cross the fog line. Therefore, she believes there is no evidence of any infraction, much less one committed in an officer's presence. We disagree. First, negligent driving only requires that she endanger someone or someone's property. She did. Second, the trooper's sight is only one of the senses available to an officer to form the judgment of probable cause. It is perfectly proper for him to acquire the necessary information through his other senses and to make inferences from those sense impressions. Montgomery, 31 Wn. App. at 752. That is what happened here.
Finally, and parenthetically, a Terry stop "is reasonable if the State can point to `specific and articulable facts giving rise to a reasonable suspicion that the person stopped is, or is about to be, engaged in criminal activity.'" Santacruz, 132 Wn. App. at 619 (internal quotation marks omitted) (quoting Villarreal, 97 Wn. App. at 640). We consider the circumstances from the perspective of a trained and experienced officer. State v. Glover, 116 Wn.2d 509, 514, 806 P.2d 760 (1991). Ms. Harbour swerved sharply and nearly hit a parked police car that was located on the shoulder of the road. Until seconds before this event, Trooper Nelson's emergency lights had been flashing and visible from quite a distance as it was dark. These unusual events support "reasonable suspicion" of criminal activity such as DUI.
Ms. Harbour also claims the stop was pretextual. The court's factual findings again support its conclusion that it was not.
We affirm the conviction.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
Sweeney, C.J.
WE CONCUR:
Brown, J.
Kulik, J.