Opinion
No. 61217-4-I.
January 20, 2009.
Appeal from a judgment of the Superior Court for Snohomish County, No. 07-1-03490-5, Michael T. Downes, J., entered January 30, 2008.
Remanded by unpublished per curiam opinion.
UNPUBLISHED OPINION
Where a defendant contends a traffic stop was pretextual, the State has the burden to prove a warrantless search or seizure fits within an exception to the warrant requirement. Jesse Esquibel was arrested on an outstanding warrant after the car in which he was a passenger was stopped for a traffic infraction. He contended the stop was pretextual because the officer suspected the occupants of involvement of a prowling incident nearby. The court disagreed, but failed to enter written findings on the subjective intent of the deputy who stopped the car. Esquibel contends the proper remedy is dismissal because the State failed to meet its burden of proof. But the court made oral findings, and its judgment necessarily implied rejection of Esquibel's argument. The proper remedy is remand for entry of supplemental written findings consistent with the evidence.
BACKGROUND
On the night of November 17, 2007, Deputy Alexander Ross of the Snohomish County Sheriff's Office was dispatched to investigate a report of three black-clad prowlers near a church. After checking two churches in the area, the officer parked parallel to the only road leaving the area and observed traffic.
A maroon Honda passed, and the deputy took the license plate number. He could not see the driver or into the interior of the car. The deputy followed the Honda while he ran the license plate. The registration came back to a male with a suspended license. The deputy then initiated a traffic stop.
The State challenges this finding and points out that Deputy Ross testified he started following the Honda only after he learned that the registered owner's license was suspended.
The Honda pulled into a parking lot. Deputy Ross noticed there were five occupants, and called for backup. While waiting, the deputy observed that the passengers on each side of the rear seat did not have shoulder belts fastened. He also noticed that all three rear seat passengers were dressed in black. He was unable to see the driver.
When backup arrived, the deputy got out of his car and walked along the driver's side. He noticed that the middle rear seat passenger also was not wearing his seat belt. At about the same moment, the driver, a petite 17 year old female, turned and offered her driving license.
The deputy asked all rear seat passengers for identification because they were not wearing seat belts. When the deputy checked their identification over the radio, he learned that Esquibel had an outstanding felony warrant for assault. The deputy arrested Esquibel. Esquibel told the deputy he had a gun and a knife, which the deputy removed from his pockets.
Esquibel was charged with second degree unlawful possession of a firearm. He moved to suppress the evidence as a result of an unlawful seizure, arguing that the stop was a pretext and that the deputy lacked reasonable articulable suspicion to stop the car in view of the fact that a woman, and not a male, was driving. After hearing testimony and argument, the court denied the motion. The court later entered written findings of fact and conclusions of law. Esquibel waived jury and was convicted on stipulated facts. He appeals.
ANALYSIS
A traffic stop is valid when a law enforcement officer has an articulable suspicion of unlawful conduct on the part of the driver. But when the officer stops an individual not to enforce the law but to conduct an unrelated criminal investigation, the stop is a pretext. Pretextual stops violate article I, section 7 of the Washington Constitution "because they are seizures absent the `authority of law' which a warrant would bring." "When determining whether a given stop is pretextual, the court should consider the totality of the circumstances, including both the subjective intent of the officer as well as the objective reasonableness of the officer's behavior." The State has the burden to prove the officer's subjective intent was permissible.
State v. Ladson, 138 Wn.2d 343, 349-350, 979 P.2d 833 (1999); Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
Ladson, 138 Wn.2d at 349.
Id. at 358.
Id. at 358-59.
Id. at 350.
Esquibel contends Deputy Ross intended to investigate the prowling incident, not a suspended license infraction, when he stopped the car. He argues that in the absence of any written finding regarding the deputy's subjective intent in making the traffic stop, "we must indulge the presumption that the party with the burden of proof failed to sustain their burden on this issue," and therefore must reverse.
Esquibel assigns error to finding of fact 1.20, stating that Deputy Ross's testimony was "highly credible," Clerk's Papers at 4, and the court's conclusions that Deputy Ross had authority to stop the Honda because the registered owner's driving license was suspended, and to ask for identification from Esquibel because he was not wearing a seatbelt. But credibility determinations are for the trier of fact and cannot be reviewed on appeal. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). Also, Esquibel devotes the entirety of his argument to the State's failure to procure findings regarding Deputy Ross's subjective intent. We therefore do not review the objective reasonableness of Deputy Ross's actions. RAP 10.3(a)(5); State v. Olson, 126 Wn.2d 315, 321, 893 P.2d 629 (1995).
State v. Armenta, 134 Wn.2d 1, 14, 948 P.2d 1280 (1997).
The State responds that where the written findings are deficient, we may consider the court's oral findings, and urges us to remand for entry of additional written findings based on the evidence in the record and the court's oral remarks. We agree. Although the court made detailed written findings describing the events and concluded that Deputy Ross's actions were objectively reasonable in view of the applicable statutes and State v. Penfield, it omitted findings on Deputy Ross's subjective intent. But the court did address Deputy Ross's subjective intent in its oral ruling:
See Clerk's Papers at 2-4 (findings of fact 1.1-1.20).
106 Wn. App. 157, 22 P.3d 293 (2001) (holding that an officer who stopped a vehicle could not lawfully ask the male driver to identify himself upon realizing that he was not the registered owner, when the basis for the stop was license suspension of female who was vehicle's registered owner).
I find that is the credible sequence of events, and I cannot find . . . that Officer Ross was well aware that it was a female driver before the saw the seat belt violations. Therefore, I find that this was not a circumstance where there was a fishing expedition which was really a way of questioning possible suspects in a prowling incident that happened earlier in the evening.[]
Report of Proceedings (Jan. 10, 2008) at 83.
The oral ruling, together with the court's denial of Esquibel's motion to suppress, demonstrates that the trial court did not omit the finding on intent because the State failed to meet its burden the proof. We therefore decline to presume that omission of the finding constitutes a finding of failure of proof.
See Armenta, 134 Wn.2d at 14 n. 9 (recognizing, but finding inapplicable, exception from rule of presumption of negative finding where there is ample evidence to support the missing finding and the findings, viewed as a whole, demonstrate that the absence of the specific finding was not intentional); State v. Souza, 60 Wn. App. 534, 541-43, 805 P.2d 237 (1991).
The remedy for missing but necessary findings of fact and conclusions of law is ordinarily remand for entry of the additional findings on the existing record, and we remand here for that purpose.
In re Breedlove, 138 Wn.2d 298, 311, 979 P.2d 417 (1999).