Opinion
No. 61169-1-I.
April 13, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-1-05623-4, Christopher A. Washington, J., entered January 8, 2008.
Affirmed by unpublished opinion per Cox, J., concurred in by Dwyer, A.C.J., and Leach, J.
In order for an investigative stop to be valid under either our state or federal constitutions, the officer must have "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Articulable suspicion is a substantial possibility that criminal conduct has occurred or is about to occur.
Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) (applied to state constitutional analysis in State v. Kennedy, 107 Wn.2d 1, 5, 726 P.2d 445 (1986)); City of Seattle v. Yeager, 67 Wn. App. 41, 46, 834 P.2d 73 (1992).
Kennedy, 107 Wn.2d at 6; Yeager, 67 Wn. App. at 46.
Here, a police officer validly stopped a vehicle driven by Cleanthony Jimerson. But the validity of the stop ceased once the officer saw Jimerson at the wheel. The information then available to the officer about the registered owner of the vehicle made it clear that Jimerson was not the owner.
Accordingly, the officer had no right to ask for Jimerson's driver's license. The items found during the search incident to his arrest therefore must be suppressed. We affirm.
Seattle Police Officer Jose Silva was on patrol and observed a vehicle traveling East on Yesler Way. Using the computer in his patrol car, he ran a check on the vehicle's license plate. The computer check displayed information that the registered owner of the vehicle had a suspended driver's license. Additional information on the screen revealed the owner's height, weight, and age but did not include a photograph. Officer Silva only noted the name and sex of the registered owner as he was following the suspect vehicle down a winding road when the information first came up on his screen.
The officer stopped the vehicle and called for back-up officers, but did not wait for back-up officers to arrive before proceeding to the driver's window and contacting Jimerson in the driver's seat. He did not note the information about the owner's height, weight, and age before he approached the stopped vehicle. The report showed, among other things, that the registered owner was a male named Wilbur Peace, born December 18, 1951. The record shows that Jimerson was born on July 17, 1985. Once the officer observed that the driver was Jimerson, it should have been manifestly clear that Jimerson was not the registered owner of the vehicle according to the information on the officer's computer screen.
Nevertheless, Jimerson's answer to the officer's request for identification led to his subsequent arrest. In a search incident to arrest, the police discovered three loaded handguns in the vehicle.
The State charged Jimerson with unlawful possession of a firearm in the second degree. Before trial, Jimerson moved to suppress all statements and evidence seized incident to his arrest. After a CrR 3.6 hearing, the trial court entered written findings of fact and conclusions of law and granted Jimerson's motion. The court then dismissed the State's case against Jimerson.
The State appeals.
SUPPRESSION OF EVIDENCE
The State argues that the trial court erred by ruling that the police's investigatory stop of Jimerson was unlawful and by suppressing evidence obtained in the search incident to Jimerson's arrest. We hold that although the stop was valid, the permissible scope of that stop ended once the officer should have been able to identify that the driver of the car was not its registered owner.
In order for an investigative stop to be valid under either our state or federal constitutions, the officer must have "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion."
Yeager, 67 Wn. App. at 46 (quoting Terry, 392 U.S. at 21) (citing Kennedy, 107 Wn.2d at 5).
An officer may stop a vehicle registered to a person whose driver's license has been suspended. A Department of Licensing report of suspension supports an articulable suspicion of criminal conduct sufficient to justify a brief investigatory stop. "It is, then, appropriate and permissible for the officer to dispel his or her suspicion by identifying the driver."
RCW 46.20.349.
State v. Phillips, 126 Wn. App. 584, 587, 109 P.3d 470 (2005) (citing State v. Penfield, 106 Wn. App. 157, 160-61, 22 P.3d 293 (2001)).
Phillips, 126 Wn. App. at 588 (citing State v. Lyons, 85 Wn. App. 267, 271, 932 P.2d 188 (1997); Yeager, 67 Wn. App. at 47.
When an unconstitutional search or seizure occurs, all subsequently uncovered evidence becomes fruit of the poisonous tree and must be suppressed.
State v. Ladson, 138 Wn.2d 343, 359, 979 P.2d 833 (1999).
We review de novo the court's conclusions of law following a motion to suppress. Neither party assigns error to the trial court's written findings of fact. Thus, they are verities for purposes of appeal. Moreover, "[i]n the absence of a finding on a factual issue we must indulge the presumption that the party with the burden of proof failed to sustain their burden on the issue."
State v. Acrey, 148 Wn.2d 738, 745, 64 P.3d 594 (2003).
Id.
State v. Armenta, 134 Wn.2d 1, 14, 948 P.2d 1280 (1997).
In State v. Penfield, Division Three of this court held that under the Fourth Amendment an officer may not, without additional grounds for suspicion, proceed with a stop based on a registration check once it is manifestly clear that the driver of the vehicle is not the registered owner. In Penfield, the registered owner was a woman and the driver was a man. The court concluded that the officer "violated Mr. Penfield's Fourth Amendment right to be free of unreasonable searches and seizures when he asked Mr. Penfield to produce his driver's license."
106 Wn. App. 157, 22 P.3d 293 (2001).
Penfield, 106 Wn. App. at 162.
Id. at 161.
Id. at 162-63.
Here, as in Penfield, Officer Silva based his articulable suspicion of criminal activity on a DOL report showing that the registered owner's driver's license was suspended. This case is also like Penfield in that the focus of our inquiry is not on the officer's initial decision to stop the vehicle based on a registration check. Rather, we instead focus on the officer's decision to continue the investigation and ask the driver to produce his driver's license once the officer was close enough to speak to the driver.
The same rule as applied in Penfield applies here. This was a valid Terry stop, triggered by the information on the officer's computer that the owner of the vehicle had a suspended license. Officer Silva's check of the vehicle's license plate brought up a P.I.C. report on his computer screen and showed that the registered owner had a suspended driver's license. The P.I.C. report showed the registered owner's date of birth, among other things.
As the trial court found, there was no way for the officer to compare the identity of the driver of the vehicle with the description of its registered owner on the police computer until he stopped the vehicle. But the trial court also determined that, had the officer read the information available to him on the police computer, it would have been manifestly clear to him that the driver was not the registered owner as soon as he observed the driver. At that point, the validity of the stop ceased. The officer had no authority to ask the driver for his license.
The State argues the trial court used the wrong standard in assessing whether the police officer's actions were reasonable. We disagree.
Under Terry, we determine whether the officer's actions were reasonable under the totality of the circumstances. Here, the P.I.C. report containing the description of the registered owner was on Officer Silva's computer screen at least at the time he stopped his vehicle and called for back-up. Yet he decided to contact the driver without waiting for back-up to arrive and without fully reviewing the information already on the computer. Officer Silva only noted the name and sex of the registered owner before contacting Jimerson.
See Acrey, 148 Wn.2d at 747 ("In evaluating the reasonableness of an investigative stop, courts consider the totality of the circumstances. . . .").
These actions were not reasonable under the totality of the circumstances. Even though the court also determined that there was no pretext for the stop, the officer's action in asking for identification once he should have been able to know that the driver was not the owner of the car was not reasonable. The trial court properly concluded that "[o]nce Officer Silva was able to observe the defendant while standing at the driver's window, it should have been manifestly clear the defendant was not the registered owner and [Officer Silva] should have terminated the stop."
Clerk's Papers at 36.
The State does not argue that Jimerson, 21 years old at the time of the incident, could have been mistaken for Mr. Peace. Instead, the State argues that Officer Silva had no obligation under Penfield to discover the additional information in the P.I.C. report available to him. But for the reasons we have explained, the officer did have such an obligation to avail himself of the information readily available to him.
The State also argues that the officer's continued detention of Jimerson was justified when Jimerson failed to provide a valid driver's license upon request. This argument misses the mark.
In Penfield, the court recognized that after an officer validly initiates a stop, "[o]ther facts may exist to create a suspicion that the driver may not have the owner's permission to use the automobile or that the driver is engaged in some other criminal activity." But the officer's justification for detaining Jimerson after asking for identification is not at issue. If there had been a lawful basis to request Jimerson's identification, then the State's argument would warrant consideration. The State does not argue, nor does the record support, that Officer Silva had a reasonable, articulable suspicion that the Jimerson was engaged in any criminal activity beyond the results of the registration check, which justified the initial stop.
Penfield, 106 Wn. App. at 162.
The remaining cases cited by the parties do not require a different result. State v. Nall, State v. O'Cain, and State v. Mance each deal with the reliability and validity of the information that police relied on for probable cause to stop a vehicle. Neither is at issue here.
117 Wn. App. 647, 72 P.3d 200 (2003).
108 Wn. App. 542, 31 P.3d 733 (2001).
82 Wn. App. 539, 918 P.2d 527 (1996).
State v. Byrd is also of dubious value. In Byrd, the State conceded that a stop merely to check the validity of a trip permit was an invalid seizure because driving with a trip permit is legal in Washington. But the initial stop here was valid for the reasons we have already explained.
110 Wn. App. 259, 39 P.3d 1010 (2002).
Byrd, 110 Wn. App. at 262.
In sum, Officer Silva had a legitimate basis for stopping Jimerson's vehicle under RCW 46.20.349 because he had received a report that the registered owner's license was suspended. But the valid scope of the stop ceased under the totality of the circumstances once the officer should have been able to determine from the information then available to him on his computer that Jimerson, the driver of the vehicle, was not the registered owner.
We affirm the order suppressing evidence and dismissing the case.
WE CONCUR: