Opinion
No. 26255-0-II c/w 26265-7-II
Filed: March 4, 2003 UNPUBLISHED OPINION ORDER AMENDING OPINION
Appeal from Superior Court of Thurston County Docket No: 99-1-01941-9 Judgment or order under review Date filed: 06/30/2000
Counsel for Appellant(s), Stephanie C Cunningham, Attorney at Law, # 552, 4603 University Vlg NE, Seattle, WA 98105-5091.
Thomas Edward Doyle, Attorney at Law, P.O. Box 510, Hansville, WA 98340-0510.
Counsel for Respondent(s), Steven Curtis Sherman, Thurston County Pros Ofc, 2000 Lakeridge Dr SW, Olympia, WA 98502-6045.
Robert Maddaus appeals his convictions of unlawful possession of a controlled substance with intent to deliver; possession of ephedrine or pseudoephedrine with intent to manufacture; and two counts of bail jumping, arguing numerous errors. We affirm the convictions of unlawful possession of a controlled substance with intent to deliver and two counts of bail jumping, reverse the conviction of unlawful possession of ephedrine or pseudoephedrine with intent to manufacture, vacate the sentence, and remand for further proceedings.
FACTS
November 29, 1999 Incident (Unlawful Possession of a Controlled Substance with Intent to Deliver)
On November 29, 1999, Officer Shirley McLamore was on patrol in the City of Lacey when she recognized a vehicle that was registered as sold, but for which the registration was not transferred within 45 days as RCW 46.12.101(6) requires.
RCW 46.12.101(6)(d) provides in part that '[f]ailure or neglect to make application to transfer the certificate of ownership and license registration within forty-five days after the date of delivery of the vehicle is a misdemeanor.'
The officer noticed the vehicle again, followed it, activated her overhead lights, and attempted to pull it over. The driver decelerated, pulled to one side of the road, and turned to face the officer. McLamore activated her sirens. The driver continued forward, turned onto a side street, pulled over, and stopped.
The officer asked for the driver's license and checked it with the Department of Licensing, which responded that Maddaus' license was suspended in the third degree, a criminal offense. The officer arrested Maddaus.
Two passengers, Joseph Hammons and Gilbert Crawford, were also in the vehicle. During a search of the vehicle incident to Maddaus' arrest, McLamore found a cellular telephone, a pager, an electronic scale, and $212 in cash. McLamore also recovered an Altoids can, containing five capsules filled with white powder. The Washington State Crime Laboratory (Crime Lab) later identified the powder as nicotinamide, a diluting agent used in methamphetamine manufacture.
The officer also found a blue vinyl bag that contained scales, plastic baggies with white powder, and other small baggies. The car contained another capsule with tan powder. The capsule was similar to the ones filled with nicotinamide, but it tested positive for methamphetamine.
In the rear of the car, the officer discovered an eyeglass holder with a smoking pipe and other drug-related paraphernalia inside. The Crime Lab confirmed that the plastic baggies found in the blue vinyl bag contained 11.4 grams of methamphetamine.
Based on this incident, the State charged Maddaus with unlawful possession of a controlled substance (methamphetamine) with intent to deliver. December 19, 1999 (Unlawful Possession of Ephedrine or Pseudoephedrine with Intent to Manufacture)
The State later amended the information to include three counts of bail jumping for failing to appear for scheduled court hearings on December 3, 1999, January 27, 2000, and February 25, 2000.
On December 19, 1999, Officer McLamore saw Maddaus driving a red Ford Probe. The officer confirmed that Maddaus' license was still suspended and followed him. When Maddaus drove to a residence and stopped, McLamore called out to him but Maddaus did not respond. After a search for Maddaus around the residence, McLamore spoke with Fawn Goguen, the homeowner, and asked her for permission to search the house. Goguen gave limited permission. The search revealed nothing illegal.
McLamore talked with Trisha Rugbart, Maddaus' girlfriend, who was in Goguen's garage. Rugbart was the registered owner of the red Ford Probe. McLamore also determined that Rugbart and Maddaus lived together.
McLamore looked through the car's driver side window and observed a syringe and a cellular telephone on the driver's seat. In response to McLamore's questions, Rugbart said that neither she nor Maddaus was a diabetic and had no reason to have a syringe. McLamore then impounded the car and obtained a search warrant.
During the search, McLamore discovered a blue duffel bag in the front passenger seat. The bag contained multiple small packages of 60 milligram pseudoephedrine HCL tablets. She also discovered a gray backpack that contained a pill bottle labeled pseudoephedrine hydrochloride, which contained red powder, and another pill bottle labeled pseudoephedrine, which contained a bluish-gray powder. In a smaller black bag, the officer discovered a substance that, by its appearance, she suspected was methamphetamine. She further found a niacinamide pill bottle containing capsules of white powder. She also discovered paper towels and coffee filters.
McLamore variously identified the tablets as pseudoephedrine, or pseudoephedrine HCL, or pseudoephedrine hydrochloride.
The officer's search further produced: receipts for Toluol (Toluene) and iodine; small baggies with white powder residue; clear baggies with an opened pseudoephedrine packet; drug paraphernalia, namely, a container with cotton filters, metal teaspoon, metal and glass round containers; smoking pipe; face mask/breathing apparatus; two propane tanks; a drawing with a caption `Iceman'; and a police scanner. After the search, McLamore arrested Maddaus and Rugbart.
McLamore testified that in her experience, the tanks are emptied and replaced with ammonia.
McLamore testified that `ice' is slang for methamphetamine. Report of Proceedings at 129.
The State charged Maddaus with (count I) unlawful possession of a controlled substance with intent to deliver (methamphetamine), and (count II) unlawful possession of ephedrine or pseudoephedrine with intent to manufacture. RCW 69.50.440.
The Crime Lab determined that the red powder in a bottle recovered from the gray backpack was red phosphorus. The plastic bottle with the bluish-gray powder was iodine. At trial, a forensic scientist identified the 49 unopened packets found in the blue duffel bag as factory-sealed tablets labeled as pseudoephedrine.
The forensic scientist testified that when the pseudoephedrine, red phosphorus and iodine are heated in a liquid medium, they make methamphetamine. The scientist confirmed that one of the baggies held 6.8 grams of a chunky brown material containing methamphetamine. She also said that capsules with the white powder were nicotinamide, which is the same as niacinamide and was used as a cutting agent for methamphetamine.
The coffee filters recovered from the scene contained a presence of ephedrine or pseudoephedrine. The forensic scientist also testified that all of the exhibits she analyzed were typical of what one would find in a methamphetamine manufacturing operation. Washington State Patrol Narcotics Detective Jeffrey Kershaw testified that the materials comprised those used in the methamphetamine manufacturing.
During trial, car passenger Hammons testified that he saw Maddaus cooking methamphetamine around December 19. Maddaus also testified and accused Hammons of putting the blue bag found in the vehicle on December 19 into the car.
A jury found Maddaus guilty of unlawful possession of a controlled substance with intent to deliver (the November 29 incident) and guilty of possession of ephedrine and pseudoephedrine with intent to manufacture (count II of the December 19 incident) and guilty of two of the three counts of bail jumping. He appeals.
ANALYSIS
Accomplice Liability
Maddaus first argues, through counsel and pro se, that the accomplice liability instruction was an inaccurate statement of the law. He asserts that because of the improper instruction, the State did not have to prove an essential element of the charged offenses. He further asserts that the error was not harmless.
The State concedes error under State v. Cronin, 142 Wn.2d 568, 578-80, 14 P.3d 752 (2000). Hence, we do not set forth the court's instructions.
The trial court cannot instruct a jury that a person is an accomplice if he or she acts with knowledge that his or her actions will promote any crime, rather than the charged crime. State v. Roberts, 142 Wn.2d 471, 509-13, 14 P.3d 713 (2000); State v. Cronin, 142 Wn.2d 568, 578-80, 14 P.3d 752 (2000). Here, the trial court erred in instructing the jury as it did on accomplice liability. Maddaus claims that a to-convict instruction that omits an element of a crime is `per se' reversible error. Appellant's Brief at 20 (citing State v. Jackson, 137 Wn.2d 712, 727, 976 P.2d 1229 (1999); State v. Eastmond, 129 Wn.2d 497, 503, 919 P.2d 577 (1996)). We disagree.
Contrary to Maddaus' argument, our Supreme Court recently held that an erroneous accomplice liability jury instruction is subject to harmless error analysis. State v. Brown, 147 Wn.2d 330, 339, 58 P.3d 889 (2002). Under such analysis, we must thoroughly examine the record and `conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error.' Brown, 147 Wn.2d at 340 (quoting Neder v. United States, 527 U.S. 1, 19, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)).
As to the November 29 incident, our review of the record shows that the State argued that Maddaus acted as the principal offender in the crimes charged. He was arrested on November 29 because he was driving with a suspended license. During a search incident to his arrest, Officer McLamore found a cellular telephone, pager, and $212 in cash on Maddaus. McLamore also recovered other evidence of drugs and drug-related paraphernalia.
Later, the Crime Lab confirmed that the plastic baggies found in the blue vinyl bag contained 11.4 grams of methamphetamine. Detective Kershaw testified that such quantity is generally associated with distribution, not personal use. Kershaw also testified that cellular telephones, pagers, and large amounts of cash are associated with suspects involved in manufacturing and distributing methamphetamine. We are satisfied that the error here was harmless beyond a reasonable doubt.
As to the December 19 incident, on that day, McLamore again saw Maddaus driving, determined that he still had a suspended license, and tried to stop him as he walked toward a residence. After a search around the residence for Maddaus, McLamore looked through the driver's side window of the car. She spotted a syringe and a cellular telephone on the driver's seat. She then impounded the car, obtained a search warrant, and seized evidence of drugs and drug-related paraphernalia. A forensic scientist from the Crime Lab testified that the items seized were typical of what one would find in a methamphetamine manufacturing operation. Again, we are satisfied that the error was harmless beyond a reasonable doubt. Sufficiency of the Evidence
Next, Maddaus argues that his convictions should be reversed because the State failed to prove beyond a reasonable doubt that he acted with knowledge that his actions would promote or facilitate the charged crime, or that he encouraged or solicited another to commit the crimes.
Maddaus bases his argument on the ground that the accomplice instruction was incorrect. Therefore, he asserts that the State did not present sufficient evidence of all elements of the crime. Maddaus' argument fails because the State charged him as a principal, not as an accomplice, and never made complicity arguments. Thus, the State did not have to prove that he acted with knowledge that his actions would promote or facilitate the charged crime or that he encouraged or solicited another to commit the crimes as the accomplice liability instruction required. State v. Trujillo, 112 Wn. App. 390, 401, 49 P.3d 935 (2002) (any person who participates in the commission of a crime is guilty of the crime and is charged as a principal). Bail Jumping Charging Document
Maddaus next contends that his bail jumping convictions must be reversed because the charging information fails to allege all of the elements of the offense. Specifically, he asserts that the information did not clearly inform him of the underlying offense or the particular charges.
An information must contain all essential elements of a crime, statutory or otherwise, in order to give notice to the accused of the nature and cause of the action against him. State v. Kjorsvik, 117 Wn.2d 93, 97, 812 P.2d 86 (1991). Where the challenge to the sufficiency of the charging document is raised for the first time after the verdict, we construe the document liberally in favor of its validity. Kjorsvik, 117 Wn.2d at 105. We uphold an information under the liberal construction rule, if "an apparently missing element . . . [may] be fairly implied from language within the charging document." State v. Green, 101 Wn. App. 885, 889, 6 P.3d 53 (2000) (citing Kjorsvik, 117 Wn.2d at 104), review denied, 142 Wn.2d 1018 (2001).
The first inquiry is whether the necessary facts appear in any form in the charging document. State v. Ibsen, 98 Wn. App. 214, 216, 989 P.2d 1184 (1999). And if they do, was the defendant `nonetheless actually prejudiced by the inartful language which caused a lack of notice?' Kjorsvik, 117 Wn.2d at 106.
The bail jumping statute as it existed in 1999 stated:
(1) Any person having been released by court order or admitted to bail with the requirement of a subsequent personal appearance before any court of this state, and who knowingly fails to appear as required is guilty of bail jumping.
(2) Bail jumping is:
(a) A class A felony if the person was held for, charged with, or convicted of murder in the first degree;
(b) A class B felony if the person was held for, charged with, or convicted of a class A felony other than murder in the first degree;
(c) A class C felony if the person was held for, charged with, or convicted of a class B or class C felony;
(d) A misdemeanor if the person was held for, charged with, or convicted of a gross misdemeanor or misdemeanor.
Former RCW 9A.76.170 (1998).
The essential elements of bail jumping under this statute are met if the defendant: '(1) was held for, charged with, or convicted of a particular crime; (2) was released by court order or admitted to bail with the requirement of a subsequent personal appearance; and, (3) knowingly failed to appear as required.' State v. Pope, 100 Wn. App. 624, 627, 999 P.2d 51, review denied, 141 Wn.2d 1018 (2000). Also, the statue implies a nexus between the crime for which the defendant was held, charged, or convicted and the later personal appearance. Pope, 100 Wn. App. at 627.
In the present case, Maddaus was charged in the amended information as follows:
COUNT II: BAIL JUMPING, RCW 9A.76.170: In that the defendant, ROBERT JOHN MADDAUS, in the County of Thurston, State of Washington, on or about the 3rd day of December, 1999, having been released by court order or admitted to bail with the requirement of a subsequent personal appearance before a court of this state, to-wit: Thurston County Superior Court Cause No. 99-1-1941-9, a case in which a Class B or Class C felony has been filed, did knowingly fail to appear as required; contrary to the Revised Code of Washington 9A.76.170. . . .
COUNT IV: BAIL JUMPING, RCW 9A.76.170:
In that said defendant, ROBERT JOHN MADDAUS, in the County of Thurston, State of Washington, on or about the 25th day of February, 2000, having been released by court order or admitted to bail with the requirement of a subsequent personal appearance before a court of this state, to-wit: Thurston County Superior Court Cause Nos. 99-1-1941-9 and 99-1-2061-1, a case in which a Class B or Class C felony has been filed, did knowingly fail to appear as required; contrary to the Revised Code of Washington 9A.76.170.
Clerk's Papers (CP) at 21-22. The charging document informed Maddaus that he had failed to appear and of the underlying charge by its cause number.
In addition, the document set forth the possible class of the underlying charge.
The question here is whether Maddaus was apprised of the essential elements of the crime of bail jumping through the information, which contained the underlying charge by its cause number and class of that charge. We hold here that the information, liberally construed, informed Maddaus of all elements of bail jumping, including the penalty he faced.
The information clearly states that Maddaus failed to appear after being charged with a class B or C felony, which corresponds to class C felony bail jumping. RCW 9A.76.170(3)(c). The information was sufficient. Failure to Suppress
Maddaus further fails to show how he was actually prejudiced by the language presented in the information, as required in the second prong of the Kjorsvik analysis. Kjorsvik, 117 Wn.2d at 105-06.
Next, Maddaus claims that McLamore had neither probable cause nor a reasonable and articulable suspicion to stop him on November 29.
Therefore, he argues, the trial court erred in denying his motion to suppress evidence seized during a vehicle search incident to his arrest.
To justify a Terry stop under the Fourth Amendment and article I, section 7, a police officer must be able to "point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [an] intrusion." State v. Mendez, 137 Wn.2d 208, 223, 970 P.2d 722 (1999) (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). The level of articulable suspicion necessary to support an investigative detention is "a substantial possibility that criminal conduct has occurred or is about to occur." Mendez, 137 Wn.2d at 223 (citing State v. Kennedy, 107 Wn.2d 1, 6, 726 P.2d 445 (1986)). Reasonableness is determined from the totality of circumstances known by the officer. State v. Glover, 116 Wn.2d 509, 514, 806 P.2d 760 (1991). The factual basis for an investigatory stop need not arise out of the officer's personal observation, but may be supplied by information acquired from another person. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); State v. Thornton, 41 Wn. App. 506, 705 P.2d 271, review denied, 104 Wn.2d 1022 (1985).
In the present case, McLamore testified during the CrR 3.6 hearing that she received information from the Department of Licensing that the vehicle Maddaus was driving was reported as sold on June 19, 1999. She stated that any time patrol officers are told that there is a `report of sale,' it is an indication that the new owner has not registered the vehicle within 45 days as the law required. Because it was a crime to fail to register the car, she stopped Maddaus, who was driving the vehicle.
In light of the circumstances surrounding this stop, the officer had reasonable suspicion to conduct an investigative stop. See Glover, 116 Wn.2d at 514. McLamore drew reasonable inferences from her own knowledge and information she was provided to determine that there was a substantial possibility that criminal conduct had occurred. Therefore, she properly stopped Maddaus and the trial court did not err in failing to suppress.
Improper Joinder
Maddaus further argues that the trial court erred in joining his offenses set forth in two informations because he was prejudiced by a single trial on the joined offenses. He claims that there was embarrassment or confusion that resulted from the joined charges and the jury potentially could have used evidence from one charge to find him guilty of another.
Joinder is proper for counts where the offenses are of the same or similar character. CrR 4.3; State v. Russell, 125 Wn.2d 24, 62, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995). We construe the rule expansively to promote the public policy of conserving judicial and prosecution resources. State v. Hentz, 32 Wn. App. 186, 189, 647 P.2d 39 (1982), rev'd in part on other grounds, 99 Wn.2d 538, 663 P.2d 476 (1983).
CrR 4.3(a) states:
Joinder of Offenses. Two or more offenses may be joined in one charging document, with each offense stated in a separate count, when the offenses, whether felonies or misdemeanors or both:
(1) Are of the same or similar character, even if not part of a single scheme or plan; or
(2) Are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.
The underlying principle behind this rule ensures that the defendant receive a fair trial untainted by undue prejudice. State v. Bryant, 89 Wn. App. 857, 865, 950 P.2d 1004 (1998), review denied, 137 Wn.2d 1017 (1999).
In deciding whether joinder was proper as a matter of law, we must determine whether the defendant suffered actual prejudice. Bryant, 89 Wn. App. 865.
In determining whether the defendant has been prejudiced by the joinder, we consider: (1) the strength of the State's evidence on each count; (2) the clarity of defenses as to each count; (3) the court instructions to the jury to consider each count separately; and (4) the admissibility of evidence of the other charges even if not joined for trial. State v. York, 50 Wn. App. 446, 451, 749 P.2d 683 (1987), review denied, 110 Wn.2d 1009 (1988).
In the present case, the record indicates that joinder was proper and Maddaus was not prejudiced. The State thoroughly and methodically produced evidence linking Maddaus to each count. He was arrested on November 29, 1999, for driving with a suspended license. A search incident to that arrest produced 11.4 grams of methamphetamine, along with other drug producing agents and paraphernalia. One of the passengers in the car, Hammons, testified that the drugs belonged to Maddaus, who made them the night before his arrest. He also testified that Maddaus sold some methamphetamine earlier in the evening.
On December 19, 1999, twenty days after his first arrest, Maddaus drove a different vehicle. McLamore, the same arresting officer from the previous incident, followed him and confirmed her suspicion that he was again driving with a suspended license. After seeing a syringe on the seat of the car that Maddaus drove, she obtained a search warrant to search the vehicle. In that car, she again found drugs, drug producing agents, and drug paraphernalia.
Rugbart, Maddaus' girlfriend at the time, testified that Maddaus was a methamphetamine cook. She further testified that some of the contents in the bags belonged to Maddaus, while others were accessible to him because they shared an apartment. All of the contents seized during this search were capable of being used to make methamphetamine. Based on the strength of the State's evidence and the similar character of the charges, possession of drugs and possession of drug producing agents, there was no prejudice.
Maddaus' defense on both counts was unwitting possession. The jury would not likely be confused where the defense is identical on each charge. Russell, 125 Wn.2d 64-65. Here, because his defense was the same on both counts and the jury was not likely confused, Maddaus suffered no prejudice. Also, the court properly instructed the jury that a separate crime had been charged on each count and that they must decide each count separately, as the third factor required.
The final factor is whether evidence of each count would be cross admissible under ER 404(b) if not tried together. ER 404(b) permits evidence of other crimes to show identity, motive, intent, preparation, plan, knowledge, absence of mistake or accident, opportunity, or an alternative means by which a crime could have been committed. Russell, 125 Wn.2d at 66.
The State's theory was that Maddaus was directly involved in the production and sale of methamphetamine, and the two charges were part of the same design. Maddaus' arrests occurred within twenty days of each other. There was substantial evidence gathered during both incidents to show that he was involved in the production, possession, and sale of methamphetamine. Such evidence addressed motive, knowledge, intent, and perhaps common scheme or plan involving an ongoing design. Because the evidence from either count was cross admissible, Maddaus was not prejudiced. Maddaus' argument based on joinder fails.
Unlawful Possession of Pseudoephedrine with Intent to Manufacture
Pro se, Maddaus asserts that his conviction of unlawful possession of pseudoephedrine with intent to manufacture should be overturned because the State presented evidence that he only possessed pseudoephedrine HCL, which is not the same as pseudoephedrine for the purposes of RCW 69.50.440. We recently addressed this argument in State v. Halsten, 108 Wn. App. 759, 33 P.3d 751 (2001). In Halsten, we held that by its plain language, RCW 69.50.440 applies only to pseudoephedrine not pseudoephdrine hydrochloride. Halsten, 108 Wn. App. at 764.
Maddaus' counsel also filed a supplemental brief setting forth this argument.
Pro se, and through counsel, Maddaus also argues that his trial counsel provided him ineffective assistance by failing to move to dismiss on the argument that pseudoephedrine HCL was not he same as pseudoephedrine for statutory purposes. As we reverse on other grounds, we do not address this argument.
The Legislature has since amended the statute. The current version of RCW 69.50.440 states in its pertinent part, `It is unlawful for any person to possess ephedrine or any of its salts or isomers or salts of isomers, pseudoephedrine or any of its salts or isomers or salts of isomers, pressurized ammonia gas, or pressurized ammonia gas solution with intent to manufacture methamphetamine.'
Here, the State presented evidence that Maddaus possessed both pseudoephredrine and pseudoephedrine HCL. McLamore testified that she found pseudoephedrine HCL tablets in the blue duffel bag. But the State forensic scientist testified that the ingredient in the tablet packages was pseudoephedrine. Additionally, the forensic scientist confirmed that the coffee filters recovered from the scene contained a presence of ephedrine or pseudoephedrine. Therefore, Maddaus incorrectly asserts that the State only presented evidence that he possessed pseudoephedrine HCL. Nevertheless, his argument regarding jury unanimity does have merit.
In pertinent part, former RCW 69.50.440 (1998) stated: `It is unlawful for any person to possess ephedrine or pseudoephedrine with intent to manufacture methamphetamine.'
Improper Jury Instructions
Maddaus argues, pro se, that the trial court erred in failing to instruct the jury that they must unanimously agree on which factual basis was proven beyond a reasonable doubt in support of each essential element of the crime charged as to the December 19 incident. He asserts that because the jury was not given a `specific unanimity' instruction, some jurors might have found him guilty of possession with intent to manufacture based on possession of pseudoephedrine HCL, while others might have found him guilty based on pseudoephedrine found in the coffee filter.
The State correctly concedes that the trial court erred in not instructing the jury to be unanimous as to the evidence satisfying an element of possession with intent to manufacture. Thus, we reverse the conviction of unlawful possession with intent to manufacture and remand for re-trial. State v. Jennings, 111 Wn. App. 54, 44 P.3d 1 (2002) (reversal and remand of conviction based on erroneous jury instructions).
Sentencing
Because we reverse and remand for further proceedings on the December 19 count II conviction, we vacate the sentence and remand for resentencing.
We do not address Maddaus' other sentencing arguments.
Other Pro Se Arguments Vehicle Search
Pro se, Maddaus claims that Officer McLamore improperly stopped him on November 29, 1999. He argues that she acted in her capacity as a `narcotics detective' and suspected the registered owner of the vehicle of drug use. Therefore, he asserts that her stop was pretextual.
When determining whether a given stop is pretextual, we consider the totality of the circumstances, including both the officer's subjective intent as well as the objective reasonableness of the officer's behavior. State v. Ladson, 138 Wn.2d 343, 358-59, 979 P.2d 833 (1999).
Maddaus' argument fails. Where enforcement of the traffic code is the reason for the traffic stop, the stop is not pretextual. State v. Hoang, 101 Wn. App. 732, 742, 6 P.3d 602 (2000), review denied, 142 Wn.2d 1027 (2001). Under RCW 46.12.101(6), the purchaser of a vehicle who fails to register it within 45 days of the date of vehicle delivery is guilty of a misdemeanor. Therefore, McLamore had reason to believe that the owner of the car Maddaus drove had violated RCW 46.12.101(6). Accordingly, the traffic stop was not pretextual.
Probable cause for a crime may exist, although the crime is a misdemeanor, if the officer believes the crime is being committed in the officer's presence. State v. Hornaday, 105 Wn.2d 120, 124, 713 P.2d 71 (1986).
Maddaus also claims that the vehicle search was improper because he did not pose a security risk to the officer. We disagree.
Under the search incident to arrest exception to the warrant requirement, an officer may search a suspect's person and the area within that person's immediate control at the time of the arrest regardless of whether exigent circumstances exist at the time of the search. State v. Porter, 102 Wn. App. 327, 330-31, 6 P.3d 1245 (2000).
The record indicates that Maddaus was arrested for driving with a suspended license, which is a criminal offense. He was searched personally and then officers search the area where he was sitting prior to his arrest. This was a proper search incident to Maddaus' arrest. Search Warrant
Also pro se, Maddaus argues that the December 19 search warrant for Rugbart's car was improper because McLamore misguided the magistrate to obtain the warrant. He challenges the search warrant claiming that there was insufficient probable cause to believe that a crime had occurred.
Search warrants are issued when the issuing magistrate has, considering all the facts and circumstances sworn to by the police officer seeking the warrant, good reason to believe that criminal activity has occurred. State v. Smith, 93 Wn.2d 329, 352, 610 P.2d 869, cert. denied, 449 U.S. 873 (1980). We review the issuance of a search warrant under an abuse of discretion standard. Smith, 93 Wn.2d at 352.
The record does not contain the search warrant or the affidavit in support of it. Maddaus only provides his motion to suppress evidence obtained under the search warrant, but nothing else to support his claim. To determine whether the magistrate abused its discretion, we must be given the same information as the magistrate. Other than the testimony presented at trial, we do not know what facts and circumstances the magistrate considered. Thus, we do not address this argument based on the insufficient record. See Bulzomi v. Dep't of Labor Indus., 72 Wn. App. 522, 525, 864 P.2d 996 (1994) (noting appellant has burden of perfecting the record and insufficient record on appeal precludes review of alleged error).
We affirm in part, reverse in part, vacate the sentence, and remand for further proceedings.
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.
MORGAN, P.J. and BRIDGEWATER, J., concur.