Opinion
No. 57078-1-I.
April 16, 2007.
Appeal from a judgment of the Superior Court for King County, No. 05-1-04681-0, Richard McDermott, J., entered September 19, 2005.
Affirmed by unpublished opinion per Grosse, J., concurred in by Schindler, A.C.J., and Coleman, J.
"[E]ven 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." Here, the police officer observed the defendant's car earlier in the evening. His suspicions were aroused, but he did not initiate a traffic stop at that time. Later, the police officer happened upon the defendant's car again and immediately observed that the defendant was violating the traffic laws by being stopped in the middle of an arterial roadway. Then, after driving by the defendant's car and observing that his license plate was improperly illuminated, the police officer initiated a traffic stop. Because the trial court properly found that under the totality of the circumstances the traffic stop was not pretextual, we affirm.
State v. Hoang, 101 Wn. App. 732, 742, 6 P.3d 602 (2000).
FACTS
On December 9, 2004, Auburn Police Officer Matt Wirt was on patrol in his squad car. His primary duty was to respond to 911 calls and his secondary duty was to perform traffic stops. While on patrol, Officer Wirt observed two cars on Stuck River Drive, one belonging to Martin and the other a Cadillac. Officer Wirt did not observe Martin commit any traffic infractions at that time, but did initiate a stop of the Cadillac.
After he finished the stop of the Cadillac, Officer Wirt came upon Martin's vehicle again. Martin's car was stopped in the middle of the lane of an arterial street for what Officer Wirt estimated to be one minute. Officer Wirt was driving in the opposite direction and as he passed Martin's car he looked back to see if he could read Martin's license plate. He observed that Martin's plate was not illuminated and decided to initiate a traffic stop. Officer Wirt made a U-turn and pulled Martin over as Martin had begun to pull away from where he had been stopped. As he initiated the stop, a camera in Officer Wirt's patrol car recorded the remainder of the incident.
Officer Doug Faini arrived shortly after the traffic stop was initiated. Although Officer Wirt testified that he had not requested back-up, Faini had been in the neighborhood with a drug canine. Faini and Wirt routinely backed each other up on traffic stops if not otherwise engaged. Officer Wirt signaled to Faini that everything was alright.
The first question Officer Wirt asked of Martin was why he had been stopped in the middle of the road. He then asked Martin what he had been doing on Stuck River Drive earlier. He then moved on and asked Martin for his license and proof of insurance. Wirt discovered that Martin's insurance was expired. He also ran his name through dispatch and discovered that there were two no-contact orders filed against Martin, each barring him from contact with a woman by the name of Kelli Reece. Dispatch provided Wirt with Reece's date of birth and her description as a Caucasian female. Wirt observed that the female passenger in Martin's car matched the description of Reece.
Armed with this information, Wirt asked the female passenger for her name. Officer Wirt testified that she was evasive and after some hesitation told him that her name was Carla Reece. He asked her for identification and she claimed she did not have any. When Officer Wirt asked her for her date of birth and social security number, Officer Wirt testified that she was having trouble coming up with her date of birth and said she did not know her social security number. During the conversation, Officer Wirt referred to the female passenger as Kelli and she responded without hesitation. When Officer Wirt finally asked her why she gave him a false name she replied, "[B]ecause I don't want my husband to go to jail."
Officer Wirt then placed Martin under arrest. The police searched Martin's vehicle, but nothing of any evidentiary value was obtained. Officer Wirt did not issue any traffic citations when he took Martin into custody.
Below, Martin argued that the traffic stop was pretextual and all evidence of his violation of the no-contact order obtained as a result of the stop should be suppressed. The trial court disagreed, finding Officer Wirt was a credible witness, and that in view of the totality of the circumstances, Officer Wirt's stop of Martin was not pretextual. Martin appeals.
ANALYSIS
Pretext?
The parties analyze this case in light of the decisions in State v. Ladson, State v. DeSantiago, and State v. Hoang, but come to different conclusions. A close reading of these cases shows that this case is more like Hoang than DeSantiago or Ladson and thus the stop was not pretextual.
Ladson, 138 Wn.2d 343, 979 Wn.2d 833 (1999).
DeSantiago, 97 Wn. App. 446, 983 P.2d 1173 (1999).
Hoang, 101 Wn. App. 732.
In the seminal case of State v. Ladson, the two police officers working on proactive gang patrol admitted that they used traffic infractions as a means to pull people over to investigate unrelated criminal activity. In Ladson, the police tailed a vehicle they believed was being driven by a person involved in drug dealing, in the hope of finding a reason to pull him over. After following the car for some time the police discovered the vehicle had expired license plate tabs. During the stop, the police learned the driver had an expired license and searched the vehicle incident to arrest, discovering a gun in the car and drugs on the driver. The Ladson court suppressed the evidence, finding it was obtained pursuant to a pretextual stop.
Likewise, in DeSantiago, the police officer saw the defendant drive away from a narcotics hot spot and followed him in the hope of finding a legal justification to stop him. When the officer saw the defendant make an illegal turn, he stopped him. During the stop the officer learned that the driver was driving with a suspended license and had an outstanding warrant for his arrest. A search incident to arrest revealed illegal drugs and a gun. The DeSantiago court held that this was a pretextual stop because, although the police officer was a patrol officer, he was not on routine traffic patrol here, but was watching a narcotics hot spot when he saw a person apparently buying drugs. The officer then followed up on that suspicion by following the vehicle, "`looking for a basis to stop the vehicle', and subjectively intended to engage in a pretextual stop."
DeSantiago, 97 Wn. App. at 452-53.
In Hoang, the police officer was parked in a neighborhood known to be a narcotics hot spot covertly observing the activities of various individuals who were milling about the street. The police officer then observed the defendant's car slowly enter the area and stop twice to converse with two groups of individuals. The officer saw no transaction take place, but suspected that a drug deal might be going down. After the vehicle started moving again, the officer observed it turn without signaling. The officer then initiated a traffic stop. During the stop, the officer learned the driver was driving with a suspended license, arrested him, and discovered drugs in the car pursuant to a search incident to arrest.
At trial the court determined the stop was not pretextual and this court affirmed. The trial court entered the finding of fact, unchallenged on appeal, that the officer "was acting within the scope of his normal traffic control duties when he made the stop, and would have made the same decision to pull Hoang over for failing to signal a left-hand turn even if the officer had not just observed Hoang twice make contact with people on the street." We thus limited our examination as to whether the trial court applied the correct standard in making its determination. Namely, "whether the trial court considered the `totality of the circumstances, including both the subjective intent of the officer as well as the objective reasonableness of the officer's behavior.'"
Hoang, 101 Wn. App. at 741.
Hoang, 101 Wn. App. at 741 (quoting Ladson, 138 Wn.2d at 358-59).
We held that the trial court applied the correct standard, observing that the officer only asked the defendant questions related to the traffic stop when he pulled him over. Furthermore, unlike Ladson and DeSantiago, we observed that "the officer did not follow Hoang hoping to find a legal reason to stop him: Hoang made a left-hand turn without signaling right before the officer's eyes, and the officer immediately pulled him over, just as he would have for any other routine stop for a traffic infraction committed in his presence." The Hoang court summarized:
Hoang, 101 Wn. App. at 741-42.
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.
Hoang, 101 Wn. App. at 742.
In this case, Martin focuses his challenge on the subjective motivation of Officer Wirt in initiating the stop. He argues that Officer Wirt's subjective motivation was not to enforce the traffic code but that the traffic violations were merely a pretext for Officer Wirt to investigate suspected unrelated criminal activity. However, the facts of this case do not support Martin's argument.
Here, as in Hoang, and unlike DeSantiago and Ladson, Officer Wirt was not following Martin in the hope of finding a reason to stop him so that he could conduct a criminal investigation. To the contrary, when Officer Wirt first encountered Martin's vehicle he did not follow him at all, but stopped another car instead. While the trial transcripts reveal that Wirt may have been suspicious of Martin's vehicle being on that road at that time of night, the fact is that he did not pursue Martin to find an excuse to stop him.
Instead, Officer Wirt happened upon Martin's car several minutes later where he immediately observed Martin's car stopped in the middle of the roadway, in violation of the law. While traveling in the opposite direction as Martin, Officer Wirt then observed that Martin's license plate was not properly illuminated. At that point he initiated the stop, as Officer Wirt testified, not because of anything he observed earlier on Stuck River Drive, but because of the traffic violations he had just observed. The trial court found Officer Wirt to be a credible witness and the facts of this case do not give reason for this court to disagree with that credibility determination.
Martin makes much of the fact that Officer Wirt asked Martin in his second question during the stop what Martin had been doing on Stuck River Drive earlier. However, the trial court found it more important that Officer Wirt's first question related directly to the traffic violation Officer Wirt had just observed. Furthermore, Officer Wirt did not pursue the subject with Martin, but instead continued to ask questions relevant to the traffic stop. When viewed within the totality of the circumstances of this stop, Officer Wirt's passing question as to Martin's activities several minutes earlier do not establish that Officer Wirt's stop of Martin was pretextual.
In short, this case is much more like Hoang than Ladson or DeSantiago. As in Hoang, Officer Wirt did not seek out the scene of the traffic violation to justify a stop for an unrelated criminal investigation. Officer Wirt happened upon Martin and immediately saw him violating the traffic laws. He then initiated the stop. That Officer Wirt's suspicions may have been aroused by having seen Martin's car earlier is not enough to establish that the stop was pretextual. As we stated in Hoang, "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." Nor is Officer Wirt's passing question as to why Martin had been in the area of Stuck River Drive compelling evidence of pretextual motivation. The totality of the circumstances of this stop, combined with the trial court's finding that Officer Wirt's testimony was credible, support the trial court's finding that this stop was not pretextual.
Hoang, 101 Wn. App. at 742.
Scope of the Stop
The scope of an investigatory stop may be enlarged or prolonged if the stop confirms or arouses further suspicions. Martin argues that Officer Wirt exceeded the scope of the traffic stop by interrogating Reece without a reasonable suspicion that she was engaged in criminal activity. However, the expansion of the stop to include the questioning of Reece was justified, relative to Martin, because the police had a reasonable suspicion that Martin was in violation of a no-contact order and thus engaged in criminal activity. To determine whether Officer Wirt's reasonable suspicions were true, it was necessary for Officer Wirt to obtain the identity of the female passenger fitting the description of the protected party in the no-contact order. When Officer Wirt, based on his experience, determined that the passenger was being evasive and untruthful, further questioning was justified. Officer Wirt did not violate Martin's rights by questioning Reece as to her identity when he had reasonable suspicion to believe that she was the subject of the no-contact order, and thus reasonable suspicion to believe that Martin was engaged in criminal activity.
State v. Smith, 115 Wn.2d 775, 801 P.2d 975 (1990).
Response to Jury Question
During jury deliberations, the jury presented the trial court with a series of questions related a document the State entered into evidence to prove that Martin had on two prior occasions violated a no-contact order, thus elevating the present offense to a felony. The document submitted by the State into evidence was Martin's plea statement on a plea of guilty, which included pleas of two counts of misdemeanor violations of court orders on the same form.
When the jury was deliberating they sent a question to the judge asking, "Is a conviction of 2 counts of a crime the same as 2 convictions[?]" The judge discussed the question with the attorneys, who argued over whether the question was a purely legal question or a factual question, suggesting that the State had failed to meet its burden of proof. The judge returned a reply, "Please refer to the jury instructions, the evidence and exhibits properly admitted."
Later, the jury submitted another, more detailed question, stating:
There are two separate items (2 3) of a violation of a court order in section 5 of State exhibit 1. The defendant (Russell Martin) pleaded guilty to Item 2 and 3 of section 5 of exhibit 1. Is pleading guilty to items 2 and 3 of State exhibit 1 equivalent to the statement on the special verdict form "twice previously convicted for violating the provisions of a no-contact order?"
The confusion is if pleading guilty to two identical items on the same form (State exhibit 1) equivalent to being "twice been previously convicted."
The parties again presented arguments as to how the judge should answer this question. In the end, the judge replied, over defense objection, that "[t]he jury instructions define a conviction as a verdict of guilty, a finding of guilty and an acceptance of a plea of guilty."
Fifteen minutes after the judge sent this reply, the jury sent another question stating: "As a matter of law, does each individual count require one separate plea from the defendant — or — is it possible that one plea be made for multiple counts." After further argument, and over defense objections, the judge replied, "A plea form may include multiple counts. The burden is upon the state to prove that the defendant was convicted of violating a no-contact order on two previous dates or occasions prior to the incident of Dec. 9, 2004." The jury then returned a verdict of guilty and a special verdict finding that Martin twice had been convicted of violating no-contact orders.
(Emphasis in original).
Martin argues that this third reply was an impermissible comment on the evidence and impermissibly emphasized the State's case. For a judge's comment to be an improper comment on the evidence it must convey, "`a personal opinion or view of the trial judge regarding the credibility, weight or sufficiency of some evidence introduced at the trial'" or "`conveys to the jury a judge's personal attitudes toward the merits of the case.'" For an instruction to impermissibly emphasize a party's case, "the instructions on a particular point must be so repetitious as to generate an `extreme emphasis' that `grossly' favors one party over the other."
State v. Frazier, 55 Wn. App. 204, 213, 777 P.2d 27 (1989) (quoting State v. Owen, 24 Wn.App. 130, 134, 600 P.2d 625 (1979)).
State v. Woods, 143 Wn.2d 561, 591, 23 P.3d 1046 (2001) (quoting State v. Swan, 114 Wn.2d 613, 657, 790 P.2d 610 (1990)).
Adcox v. Children's Orthopedic Hosp., 123 Wn.2d 15, 38, 864 P.2d 921 (1993) (quoting Samuelson v. Freeman, 75 Wn.2d 894, 897, 454 P.2d 406 (1969)).
None of the judge's instructions reveal the judge's personal attitudes on the evidence. Furthermore, the instructions are balanced, especially the third reply at issue here, which reminded the jury the burden of proof rested with the State while at the same time stating a legal truth, that a plea form could include multiple counts. Such balanced instructions that do not reveal the attitudes of the court did not violate Martin's constitutional rights.
For the above reasons, we affirm.
SCHINDLER, A.C.J. and COLEMAN, J., concur.