Opinion
No. 22557-7-III
Filed: March 15, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Grant County. Docket No. 03-1-00414-9. Judgment or order under review. Date filed: 10/21/2003. Judge signing: Hon. Ken L. Jorgensen.
Counsel for Appellant(s), Paul J. II Wasson, Attorney at Law, 2521 W Longfellow Ave, Spokane, WA 99205-1548.
Counsel for Respondent(s), Teresa Jeanne Chen, Grant County Prosecutors Office, PO Box 37, Ephrata, WA 98823-0037.
Edward Asa Owens, Grant County Prosecutor's Office, PO Box 37, Ephrata, WA 98823-0037.
James Martinez appeals his convictions for possession of cocaine with intent to deliver, possession of heroin, and failure to obey an officer. Mr. Martinez contends the court erred by (1) admitting contraband that was obtained as the result of an illegal arrest, (2) failing to find him guilty of all elements of the charged crimes, and (3) failing to enter findings of fact and conclusions of law at the conclusion of the bench trial. Mr. Martinez also contends the court lacked jurisdiction to conduct a bench trial when an affidavit of prejudice had been filed against the judge. We affirm the order of the trial court admitting as evidence the contraband that was obtained as a result of Mr. Martinez's arrest. We hold that there was sufficient evidence to find Mr. Martinez guilty of the charged crimes, but remand is necessary for the court to enter findings of fact and conclusions of law. Finally, we hold Mr. Martinez waived his right to affidavit the trial judge by failing to bring the existence of the affidavit to the attention of the trial court. The case is remanded to the trial court for the entry of findings of fact and conclusions of law.
FACTS
On May 13, 2003, Detective Brian Jones observed Gabriel Medina deposit an item in the pneumatic tube outside the drive-up window of a drugstore. Mr. Medina then got back in a vehicle driven by James Martinez. Detective Jones knew both men and also knew that Mr. Medina had several outstanding warrants for his arrest. Detective Jones, who was off-duty and in an unmarked car, radioed the dispatch center to send on-duty deputies in marked cars to arrest Mr. Medina.
While waiting for the marked patrol cars to arrive, Detective Jones followed the vehicle, an Isuzu, that Mr. Martinez was driving. Detective Jones knew that the occupants were suspected of recent violent offenses. When following the Isuzu, the detective observed the occupants making furtive gestures inside the vehicle. Based on his observations and knowledge, Detective Jones concluded that the occupants of the Isuzu knew that they were being followed and he also suspected that the occupants of the Isuzu were concealing contraband or weapons.
Deputy Greg Hutchison arrived in his patrol car and approached the Isuzu from the opposite direction. The deputy pulled his patrol car to the curb and engaged his lights before the Isuzu passed him. Deputy Hutchison then turned his patrol car, and followed the Isuzu. The deputy saw the occupants of the Isuzu turn and look at the patrol car. When Deputy Hutchison turned on his siren, the Isuzu did not pull over to the curb and passed several places affording a safe place to stop.
Deputy Hutchison also noticed suspicious movements in the Isuzu. The Isuzu traveled three blocks, rolled through one stop sign, stopped at another, and headed in the direction of a grocery store. Mr. Martinez's driving continued to be evasive, leading the officers to believe that Mr. Martinez knew he was being followed by a police officer and was evading detention by the officer. The combination of the evasive driving, and the furtive gestures visible inside the Isuzu, caused the officers to be concerned for their safety.
As the two deputies approached the grocery store in their vehicles, another patrol car arrived and was positioned at the entrance of the store's parking lot with its lights on. By this time, several other patrol cars were also visible as they approached the store. Mr. Martinez drove away from the approaching patrol cars and entered the store parking lot. At this point, the Isuzu was surrounded by the patrol cars and the officers executed a stop. All four occupants of the Isuzu were handcuffed and Mr. Medina was arrested on his outstanding warrants.
The officers then informed Mr. Martinez that he was under arrest for failure to obey an officer. Later, Deputy Hutchison acknowledged that he did not know the elements of the crime of failure to obey an officer, but he believed that the deputies could have arrested Mr. Martinez for obstructing a police officer or rendering criminal assistance. During the search incident to arrest, the officers discovered that all four of the Isuzu's occupants possessed money in various denominations. No paraphernalia or controlled substances, however, were found in the Isuzu. When Mr. Martinez was searched at the jail, police discovered cocaine and heroin in a sock in Mr. Martinez's underwear.
Failure to obey an officer is a traffic infraction that is classified as a misdemeanor. RCW 46.61.022.
At the suppression hearing, Judge Kenneth Jorgensen concluded that Mr. Martinez had an opportune place to stop after he first encountered Deputy Hutchison, but that Mr. Martinez failed to stop and drove into the grocery store parking lot causing a `serious eluding situation.' Report of Proceedings (RP) (Sept. 11, 2003) at 69. Apparently, no formal decision or findings of fact and conclusions of law were filed at the conclusion of this hearing. At this hearing, Judge Jorgensen also considered Mr. Martinez's Knapstad motion to dismiss.
State v. Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986).
Mr. Martinez was initially charged by information with five counts: possession of cocaine with intent to deliver, possession of heroin with intent to deliver, possession of a narcotic drug and/or controlled substance by a prisoner, introducing contraband in the third degree, and failure to obey a police officer.
At a scheduling hearing before Judge Evan Sperline, defense counsel learned that Judge Jorgensen would be presiding over the trial. Defense counsel filed a motion for change of judge and an affidavit of prejudice against Judge Jorgensen. Defense counsel did not pursue the motion for change of judge and did not call the motion to the court's attention. Ultimately, Judge Jorgensen presided over the bench trial.
Two of the five counts were dismissed at the bench trial. At the conclusion of the trial, the court rendered an oral ruling, but, again, no written findings of fact or conclusions of law were entered. Mr. Martinez was convicted of possession of cocaine with intent to deliver, possession of heroin, and failure to obey an officer.
At sentencing, the court imposed a special offender drug sentencing alternative (SODSA) and imposed 15 months total confinement followed by 15 months of community service. Mr. Martinez appeals.
ANALYSIS
Arrest. Article I, section 7 of the Washington Constitution permits reasonable investigatory stops. See State v. Little, 116 Wn.2d 488, 497, 806 P.2d 749 (1991). A warrantless seizure will fall within the investigatory stop exception if (1) the law enforcement officer had specific and articulable facts which gave rise to a reasonable suspicion of criminal activity, and (2) the seizure was reasonably related in scope to the specific facts and circumstances that justified the seizure in the first place. State v. Kennedy, 107 Wn.2d 1, 5-6, 726 P.2d 445 (1986); State v. Williams, 102 Wn.2d 733, 739, 689 P.2d 1065 (1984). An objective standard is used to determine whether the officer's suspicion of criminal activity was reasonable in light of the specific facts and circumstances known to the officer at the time of seizure. Kennedy, 107 Wn.2d at 7. Traffic Stop. Mr. Martinez argues that the initial stop here was pretextual. In State v. Ladson, 138 Wn.2d 343, 979 P.2d 833 (1999), the Washington Supreme Court concluded that article I, section 7 of the Washington Constitution bars police from using a traffic stop to justify a warrantless seizure when their real purpose is to investigate criminal activity for which they lack probable cause or reasonable suspicion. Id. at 355-56. The reasoning in Ladson, however, does not apply to a stop that can be constitutionally justified for its true reason. The stop here was proper based on Detective Jones's knowledge of Mr. Medina's outstanding warrants.
Mr. Martinez's Arrest. Mr. Martinez contends his arrest was improper and, consequently, any contraband obtained during the search at the jail was inadmissible. To support this argument, Mr. Martinez relies on State v. Hehman, 90 Wn.2d 45, 578 P.2d 527 (1978).
Hehman held that custodial arrests for minor traffic violations were unwarranted if the defendant signed a promise to appear in court on the citation. Id. at 47. But after Hehman, the legislature decriminalized the traffic code. Ladson, 138 Wn.2d at 355. In contrast, the offense of failing to obey a police officer remains a gross misdemeanor. Under RCW 10.31.100(6), a law enforcement officer is allowed to arrest based on a misdemeanor committed in his or her presence.
Here, Detective Jones and Deputy Hutchison observed acts establishing probable cause that Mr. Martinez failed to obey a police officer, obstructed a public servant, and rendered criminal assistance. Significantly, the first offense is a traffic offense, but the two other crimes are not traffic offenses — obstruction of a public servant is a gross misdemeanor and rendering criminal assistance fits under classifications ranging from a misdemeanor to a class C felony. Significantly, even if the reasoning of Hehman applied, the circumstances here demonstrate that the offense committed by Mr. Martinez was not minor. Cases decided after Hehman determined that a custodial arrest based on a minor traffic violation is valid based on the seriousness of the offense and the attendant circumstances, not whether the violation is designated a misdemeanor or a traffic violation. See State v. Barajas, 57 Wn. App. 556, 559, 789 P.2d 321 (1990); State v. Watson, 56 Wn. App. 665, 667, 784 P.2d 1294 (1990). When signaled by police to stop, Mr. Martinez drove his vehicle past safe places to stop and into a store parking lot; he did not stop until he was surrounded by patrol cars.
RCW 9A.76.070, .080, and .090.
Mr. Martinez also maintains that the arrest is improper based on the officers' thoughts or statements as to the nature of the crime at the time of the arrest. But this is not the standard. Instead, the court must determine the validity of the arrest by examining the facts and circumstances to assess whether probable cause exists for any crime. State v. Huff, 64 Wn. App. 641, 645, 826 P.2d 698 (1992). Even if we assume that failure to obey a police officer is a minor traffic violation, there was probable cause to support an arrest for obstruction of a public servant or rendering criminal assistance.
Findings of Fact and Conclusions of Law. Mr. Martinez contends this matter must be dismissed because the court failed to enter written findings and conclusions after the bench trial as required under CrR 6.1(d). The failure to enter written findings of fact and conclusions of law requires remand for entry of written findings and conclusions. State v. Head, 136 Wn.2d 619, 624, 964 P.2d 1187 (1998).
Mr. Martinez contends that remand would be pointless because the record here is insufficient to establish the element of intent to deliver for the possession charges and double jeopardy considerations prevent the trial court from taking new evidence.
The record does not support this argument. At the conclusion of the bench trial, the court stated that all elements were undisputed except intent to deliver. In its oral ruling, the court stated that: `The only issue before the court is whether the evidence establishes that they were possessed with the intent to deliver.' RP (Sept. 25, 2003) at 210-11. On the element of intent, the court made explicit oral findings.
Mr. Martinez argues there is insufficient evidence in the record to support an essential element of the crime. Specifically, Mr. Martinez contends the evidence is insufficient to establish that the contents of the sock were contraband. Here, the evidence is sufficient to allow the court to make this finding on remand.
The evidence showed Deputy Hutchison discovered a sock containing a plastic bag of white powder in Mr. Martinez's underwear. Based on his experience, the deputy suspected that the powder was cocaine or some type of narcotic. Mr. Martinez himself testified that he had drugs in his underwear at the time he was arrested. He admitted to carrying cocaine and heroin. Moreover, Mr. Martinez stipulated to the lab report that identified the powder seized as heroin and cocaine. And this report was admitted into evidence.
There is sufficient evidence in the record to support the convictions here. The appropriate remedy is remand for the entry of findings of fact and conclusions of law.
Affidavit of Prejudice. Under RCW 4.12.040, a party to a superior court proceeding has the right to one change of judge if the party files a timely affidavit of prejudice. However, the motion and affidavit must be filed and called to the attention of the judge before he or she has made any ruling in the case and before the judge presiding has made any order or ruling involving the exercise of discretion. RCW 4.12.050.
Mr. Martinez's motion and affidavit of prejudice failed to comply with the requirements of RCW 4.12.050 in two ways.
First, the motion and affidavit were filed after Judge Jorgensen made a ruling on the CrR 3.6 motion to suppress evidence. Second, the motion and affidavit of prejudice were not called to the attention of the court so that the court could rule on the motion. The mere filing of a motion and affidavit does not satisfy the statutory requirement that the matter be called to the judge's attention. Bargreen v. Little, 27 Wn.2d 128, 132-33, 177 P.2d 85 (1947).
Mr. Martinez asserts that the motion and affidavit were timely filed. He points out that Judge Sperline indicated at the September 23, 2003 hearing that any motion and affidavit to disqualify Judge Jorgensen must be filed that same day. According to Mr. Martinez, the fact that the motion and affidavit were filed that day demonstrates that the matter was brought to the attention of the judge for purposes of RCW 4.12.050.
Case law does not support this argument. In Bargreen, defense counsel filed a motion and affidavit of prejudice and then proceeded to trial without arguing the motion. Bargreen, 27 Wn.2d at 132-33. The Supreme Court concluded that Mr. Bargreen waived any right arising from his motion and affidavit. Id. at 133. Similarly, in State v. Smith, 13 Wn. App. 859, 860, 539 P.2d 101 (1975), the judge had knowledge that a motion and affidavit of prejudice had been filed but did not preside over Mr. Smith's probation revocation hearing until eight months later. Nevertheless, the appellate court determined that the failure of defense counsel to bring the matter before the judge's attention constituted a waiver even though the judge had previously been made aware of the request. Id. at 861. The appellate court concluded that `we do not believe that it should be the responsibility of the trial judge to meticulously examine each file before him for the possible existence of an affidavit of prejudice.' Id. Here, all that Mr. Martinez established was that Judge Sperline instructed defense counsel that if any motion and affidavit of prejudice was contemplated, these documents should be filed on September 23, 2003. The judge had no knowledge that the affidavit was ever filed, and had no obligation to search through the file to see if a filing had been made. In short, Mr. Martinez waived his rights under RCW 4.12.040 by failing to bring his motion to the attention of the judge.
In summary, we conclude that Mr. Martinez's arrest was proper. For that reason, we affirm the order of the court admitting the contraband obtained during the search at the jail. We further conclude Mr. Martinez waived any rights created by the filing of an affidavit of prejudice by failing to bring the matter to the attention of the trial court. Finally, we conclude there is sufficient evidence in this record to support Mr. Martinez's convictions, but remand is required for the entry of findings of fact and conclusions of law. The case is remanded to the trial court.
The majority of the panel has determined 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.
KATO, C.J. and SWEENEY, J., Concur.