Opinion
No. 25244-2-III
August 23, 2007.
Juan J. Gomez-Vasquez appeals his conviction for possession of methamphetamine with intent to deliver. He contends that the traffic stop leading to his arrest was pretextual, that he did not timely receive his Miranda warnings, and that there was insufficient evidence to justify his arrest and insufficient evidence to support his conviction. Mr. Gomez-Vasquez also argues that he was entitled to have a jury decide his community custody status under authority of Blakely. We find no error and affirm his conviction.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
FACTS
A Spokane County deputy sheriff stopped a car in which Mr. Gomez-Vasquez was a passenger. The driver's license was suspended. Mr. Gomez-Vasquez sat in the backseat. He identified himself to the deputy as "Armando Barreto." Report of Proceedings (RP) at 23, 66. The deputy recognized the car's license plate number as having been listed as being involved with a juvenile runaway. The deputy asked about the runaway child and asked to search the trunk. He arrested the driver for driving with a suspended license.
The deputy ordered the men out of the car and searched the car incident to the arrest. He searched the backseat and found a backpack. The backpack contained empty baggies, a scale, and a notebook. The backpack had no identification. He found a cell phone case with a large baggie (27.4 grams) and a small baggie (0.7 grams) of methamphetamine. Both the backpack and the cell phone case were near where Mr. Gomez-Vasquez sat in the backseat of the car. The cell phone case was partially sticking out from under the front passenger seat.
The deputy arrested Mr. Gomez-Vasquez based on the drugs, handcuffed him, and put him in the backseat of another deputy's car. He read Mr. Gomez-Vasquez his rights. Mr. Gomez-Vasquez acknowledged that he understood those rights and would waive them.
He said that his name was actually Juan J. Gomez-Vasquez and that he had an outstanding warrant. He referred to himself as a drug addict. He admitted that the backpack was his and said the scale did not work. He said that he had paid $500 earlier that day for drugs. He admitted that he used drugs but denied that he sold drugs.
The judge convicted Mr. Gomez-Vasquez of possession of a controlled substance with intent to deliver following a bench trial.
DISCUSSION
Traffic Stop Pretextual
Mr. Gomez-Vasquez argues that the traffic stop that led to his arrest was pretextual. He claims that the vehicle was not stopped for a traffic violation; rather, it was stopped to investigate a crime related to a missing child.
We review the trial court's findings of fact in a suppression motion 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).
A law enforcement officer is entitled to stop a vehicle 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. Ladson, 138 Wn.2d 343, 361, 979 P.2d 833 (1999); 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 what the officer senses. Montgomery, 31 Wn. App. at 752.
Here, the trial court found that the driver turned without signaling and that the deputy saw it. Clerk's Papers (CP) at 170. The defendant did not assign error to these findings; therefore, they are verities on appeal. State v. Mercy, 55 Wn.2d 530, 532, 348 P.2d 978 (1960). The deputy then had authority to stop the car. See RCW 46.64.030; RCW 10.31.100; Ladson, 138 Wn.2d at 361; Montgomery, 31 Wn. App. at 752. And the judge so concluded. CP at 168.
Mr. Gomez-Vasquez theorizes that the deputy saw the vehicle, recognized it as the subject of an "attempt to locate" notice about a runaway juvenile, and then followed the car in the hope of witnessing a traffic violation so that he could stop and investigate. But there are neither findings nor evidence in this record to support his theory. Substantial evidence supports the trial court's finding that the stop began as a traffic stop. Miranda Warnings
Mr. Gomez-Vasquez next argues that he did not timely receive his Miranda warnings prior to his statements to the police; therefore, the court should have suppressed his statements.
Again, we review the trial court's findings of fact in a suppression motion for substantial evidence and its conclusions of law de novo. Santacruz, 132 Wn. App. at 618; Mendez, 137 Wn.2d at 214.
Mr. Gomez-Vasquez assigns error to the trial court's conclusion that "[i]t is credible that the Defendant's Miranda Rights were given." CP at 164. He assigns error to the trial court's ruling that "[t]he Defendant's statements were knowingly and voluntarily made after his Miranda rights were given," and "[t]he statements are admissible." Id.
Credibility is the province of the finder of fact, in this case, the trial judge, not us. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990) (citing State v. Casbeer, 48 Wn. App. 539, 542, 740 P.2d 335 (1987)); State v. Snider, 70 Wn.2d 326, 327, 422 P.2d 816 (1967).
Mr. Gomez-Vasquez argues that his Miranda warnings were not timely. The trial court concluded that "[t]he Defendant's statements were knowingly and voluntarily made after his Miranda rights were given." CP at 164. The portion of this statement which relates to time is actually a finding of fact. A finding of fact incorrectly denominated as a conclusion of law is reviewed as a finding, for substantial evidence. Prater v. City of Kent, 40 Wn. App. 639, 644, 699 P.2d 1248 (1985).
There is substantial evidence in the record to support this finding. Two deputies testified that Mr. Gomez-Vasquez made his statements after being read his rights. And the trial judge believed them. Probable Cause
Mr. Gomez-Vasquez argues that the evidence is not sufficient to support a finding of probable cause for his arrest for constructive possession of methamphetamine. He argues that there is no evidence beyond his proximity to the drugs.
Mere proximity to an illegal substance is not sufficient to support a conviction for constructive possession. State v. Spruell, 57 Wn. App. 383, 388, 788 P.2d 21 (1990) (quoting State v. Mathews, 4 Wn. App. 653, 656, 484 P.2d 942 (1971)). But the standard for probable cause to arrest is modest. The officer must only show facts and circumstances sufficient to cause a reasonable person to believe an offense has been committed. State v. Miller, 60 Wn. App. 767, 776, 807 P.2d 893 (1991) (citing State v. Knighten, 109 Wn.2d 896, 903, 748 P.2d 1118 (1988)). He need not have evidence to prove each element of the crime beyond a reasonable doubt at the time of arrest. Miller, 60 Wn. App. at 776.
The question of probable cause is a mixed question of law and fact. State v. Vasquez, 109 Wn. App. 310, 34 P.3d 1255 (2001), aff'd, 148 Wn.2d 303, 59 P.3d 648 (2002). We first review the who, what, when, and where for substantial evidence. State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994); Bokor v. Dep't of Licensing, 74 Wn. App. 523, 526-27, 874 P.2d 168 (1994). We then decide whether the facts support the legal conclusion — probable cause. That is a legal question that we review de novo. State v. Neeley, 113 Wn. App. 100, 107, 52 P.3d 539 (2002).
Constructive possession requires that the defendant have dominion and control over the contraband or the premises where the contraband is found. State v. Callahan, 77 Wn.2d 27, 30-31, 459 P.2d 400 (1969). Determining whether there is constructive possession requires that we examine the totality of the situation. State v. Partin, 88 Wn.2d 899, 906, 567 P.2d 1136 (1977).
In State v. Morgan, a police officer noticed a pickup parked in a public park with water, a roll of aluminum foil, and a pile of white powder on the hood. Morgan, 78 Wn. App. at 210. The officer arrested the driver/owner of the pickup and another man who was with him. Id. The court concluded that the men were in joint constructive possession of the drugs because both the location of the men and the location of the drugs (spread out on the hood) supported a finding that both had dominion and control. Id. at 213.
State v. Morgan, 78 Wn. App. 208, 896 P.2d 731 (1995).
The ability to reduce an object to actual possession is an aspect of dominion and control. State v. Turner, 103 Wn. App. 515, 521, 13 P.3d 234 (2000). "Whether a passenger's occupancy of a particular part of an automobile would constitute dominion and control of either the drugs or the area in which they are found would depend upon the particular facts in each case." Mathews, 4 Wn. App. at 656.
Here, Mr. Gomez-Vasquez was the only backseat passenger. The drugs were found close to where he was sitting. He certainly had the ability to reduce them to actual possession. This supports the court's finding of dominion and control. Turner, 103 Wn. App. at 521. And it is certainly reasonable to deduce that the only passenger in the backseat had dominion and control of his area of the car. Mathews, 4 Wn. App. at 658. The court correctly concluded that the deputy had sufficient probable cause to arrest for constructive possession of methamphetamine. Sufficiency of the Evidence
Mr. Gomez-Vasquez next argues that even if the State did prove possession, the evidence is not sufficient to convict him of possession with intent to deliver.
The question is whether any rational trier of fact could have found the necessary elements of this crime when the evidence is viewed in a light most favorable to the State. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980).
The State must show something other than just possession to support a conviction for possession with intent to deliver. State v. Brown, 68 Wn. App. 480, 485, 843 P.2d 1098 (1993). At least one other factor must be present. State v. Harris, 14 Wn. App. 414, 542 P.2d 122 (1975) (additional factor of scales); State v. Simpson, 22 Wn. App. 572, 575-76, 590 P.2d 1276 (1979) (additional factors of balloons and unusual amount of drugs and cutting agent); State v. Lane, 56 Wn. App. 286, 786 P.2d 277 (1989) (additional factors of scales and large amount of cash).
The showing here is adequate. Mr. Gomez-Vasquez had a large amount of drugs, a scale, and a collection of smaller baggies. See State v. Taylor, 74 Wn. App. 111, 123, 872 P.2d 53 (1994). Blakely Issue
Finally, Mr. Gomez-Vasquez assigns error to the trial court's failure to submit the question of his community custody status to the jury. He nonetheless acknowledges that our Supreme Court's holding in State v. Jones does not require that the court submit the question to the jury. There, the court held that a conclusion that a defendant was on community placement does not implicate Apprendi or Blakely.
State v. Jones, 159 Wn.2d 231, 241, 149 P.3d 636 (2006).
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
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.
SCHULTHEIS, J., BROWN, J., concur.