Opinion
Nos. 51536-5-I, Linked w/No. 51534-9-I and 51535-7-I.
Filed: May 3, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 01-1-08856-1. Judgment or order under review. Date filed: 11/22/2002. Judge signing: Hon. Charles W Mertel.
Counsel for Appellant(s), Susan F Wilk, Washington Appellate Project, 1305 4th Ave Ste 802, Seattle, WA 98101.
Counsel for Respondent(s), Timothy John Leary, Attorney at Law, W554 King Co Cthse, 516 3rd Ave, Seattle, WA 98104-2385.
Leslie Kull contends her arrest for driving with a suspended license was an illegal pretext to search for drugs that violated her constitutional rights under article I, section 7 of the Washington State Constitution and her conviction for possession of cocaine should be dismissed. Kull did not argue below that her arrest was pretextual and there is no evidence in the record to support her claim. We affirm.
FACTS
On May 18, 2001, Seattle Police Department Officers Oscar Gonzalez and David Clement observed a 1989 Ford Taurus with recent `severe front-end damage' driving on side streets in North Seattle. They also noticed a car taillight was out. Officers Gonzalez and Clement decided to stop the car. But because they were in an unmarked car, they called for assistance before doing so.
Report of Proceedings (RP) (11/7/02) at 47.
The officers thought the car had been in an accident.
Meanwhile, the driver stopped and parked the car. Officers Gonzalez and Clement pulled up alongside. As Officer Gonzalez approached the car to talk to the driver about the taillight and front-end damage, the driver got out. Officer Clement recognized the driver, Leslie Kull, from a prior case. Based on a Department of Licensing (DOL) database search within the previous week, Officer Clement believed Kull's license was suspended. The officers arrested Kull for driving with a suspended license and gave her Miranda warnings. In a search incident to arrest they found a vial of cocaine in her coat pocket and a bag of cocaine in her right sock. After the arrest but before transporting her to the station they verified Kull's driver's license was suspended.
When asked why he checked Kull's driving status during the previous week, Officer Clement testified: `It could have been any number of reasons. People sometimes give us information about people and like they've seen somebody around. It may have been something to that effect that they had seen her around so I just ran her up to see what her status was.' RP (11/7/02) at 43-44. The officer was then asked whether he had any prior contact with Kull about her driving. Officer Clement responded, `I believe I did, but I don't recall that date. It was on a prior case.' RP (11/7/02) at 44.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Kull was charged with Violation of the Uniform Controlled Substances Act (VUCSA), possession of cocaine. Kull waived her right to a jury trial. In November 2002, Kull's case was tried to the court along with two other VUCSA cases: State of Washington v. Leslie Kull, King County cause No. 01-1-06835-7 SEA and State of Washington v. Leslie Kull, King County cause No. 01-1-09950-3 SEA. In No. 01-1-06835-7 SEA, Kull was charged with possession of cocaine, possession of methamphetamine and unlawful possession of a firearm in the second degree, and in No. 01-1-09950-3 SEA, Kull was charged with possession of cocaine.
Pretrial, Kull argued there was no probable cause for Officers Gonzalez and Clement to arrest her for driving with a suspended license and moved to suppress the cocaine. Kull claimed the officers should have verified that her license was suspended after they saw her driving but before they arrested and searched her. The trial court concluded Officer Clement had probable cause to arrest Kull because he had seen her driving the Taurus and knew from a recent DOL database check that her license was suspended. The court denied Kull's motion to suppress and found her guilty of possession of cocaine.
Kull received a standard range sentence.
DISCUSSION
On appeal Kull argues her arrest for driving with a suspended license was a pretext for an investigatory search for drugs. Kull claims Officer Clement arrested her in retaliation for her decision to stop acting as an informant. Kull also argues Officer Clement's testimony that he did not know she was the driver of the car until she stopped and got out was not credible.
This court reviews conclusions of law in an order pertaining to suppression of evidence de novo. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999). Findings of fact are reviewed under the substantial evidence standard. Id. Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the truth of the finding. Id. At trial, Kull did not argue her arrest for driving with a suspended license was a pretext to search for drugs. Arguments not raised in the trial court are generally not considered on appeal. RAP 2.5(a); State v. McFarland, 127 Wn.2d 322, 332-33, 899 P.2d 1251 (1995). However, a claim of error may be raised for the first time on appeal if it is a `manifest error affecting a constitutional right'. RAP 2.5(a)(3), McFarland, 127 Wn.2d at 333. The `defendant must identify a constitutional error and show how, in the context of the trial, the alleged error actually affected the defendant's rights; it is this showing of actual prejudice that makes the error `manifest', allowing appellate review. McFarland, 127 Wn.2d at 333. `If the facts necessary to adjudicate the claimed error are not in the record on appeal, no actual prejudice is shown and the error is not manifest.' Id.
In State v. Michaels, 60 Wn.2d 638, 374 P.2d 989 (1962), the Washington Supreme Court held that an arrest may not be used as a pretext to search for evidence. In State v. Ladson, 138 Wn.2d 343, 97 P.2d 833 (1999), the Court held that pretextual warrantless traffic stops violate article 1, section 7, of the Washington State Constitution because the true reason for the seizure is not exempt from the requirement for a warrant. Courts must examine the totality of the circumstances, including both the subjective intent of the officer and the objective reasonableness of the officer's behavior, to determine whether a stop is pretextual. Ladson, 138 Wn.2d at 358-59.
Kull argues the trial court erred when it did not rule the stop was a pretext to search for drugs. Kull's argument that her arrest was pretextual is predicated on (1) her allegations in a July 12, 2002 memorandum, and (2) a remark made by the trial court when it ruled there was probable cause to arrest her for driving with a suspended license. In July 2002, an attorney who represented her at some point prior to trial filed a `Memo Re Motion to Suppress Evidence and Statements' under the cause numbers for the three cases pending against Kull. In this pleading, Kull alleged she was arrested for possession of drugs on May 4, 2000, and afterwards worked with Officer Clement as an informant. According to the memo, when Kull decided to stop acting as an informant, Officer Clement told her she should leave his neighborhood or he would make life difficult for her. Kull states in the memo `[a]n arrest may not be used as a pretense to search for evidence,' and cites State v. Michaels, 60 Wn.2d 638.
Kull also alleges for the first time on appeal that her arrest in one of the other VUCSA cases, No. 01-1-06835-7 SEA, provides evidence that Officer Clement retaliated against her because she stopped acting as an informant. We generally do not consider arguments for the first time on appeal. RAP 2.5(a), McFarland, 127 Wn.2d at 333. Each VUCSA of the cases presented separate and distinct legal issues and Kull made no argument that they were related or connected in any way. In No. 01-1-06835-7 SEA, the primary issue was whether Officer Zsolt Dornay lawfully entered Kull's apartment. In No. 01-1-09950-3 SEA, Kull argued there was no probable cause for Officer Dorena Davis to arrest her and the cosmetic bag containing drugs in her purse was not hers.
A different attorney represented Kull at trial.
Clerk's Papers (CP) at 43-49.
CP at 48. The pretense reference in the memo does not specifically address the arrest at issue in this case.
Kull also relies on a remark made by the trial court in its oral decision denying her motion to suppress to argue her arrest was a pretext. [I]t occurs to this court that there was probable cause for this arrest. I am somewhat troubled by the stop, and I can't deny that, however, it seems to me that an officer is absolutely almost obligated to talk to a citizen when they pull over — here the evidence is uncontroverted — with a damaged car to see if they can help them.
So I don't find anything other than just a normal citizen contact, as [the prosecutor] characterizes it. I find that absolutely appropriate. Initially, it did occur to the court that this was pretextural [sic], but I think not with the taillight, damage to the front. I think the officer is obligated to ask the citizen if they can help. Once that occurs and they recognize the individual obviously driving without a license, that that gets me down to this issue of knowing that information and having verified it within the last — the officer was very clear it was within a week, I think that gives this officer probable cause for this arrest.
RP (11/7/02) at 56-7.
Below, Kull did not reference, pursue or ask the court to rule on her July 2002 Memo Re Motion to Suppress Evidence and Statements. The testimony and arguments at the November 2002 trial only focused on whether there was probable cause to arrest her for driving with a suspended license. And when Kull testified at the suppression hearing there was no reference to the allegations in her Memo Re Motion to Suppress Evidence and Statements or her relationship with Officer Clement.
Because no evidence or testimony was presented at trial about Kull's allegations they are unsubstantiated and no evidence supports Kull's argument that her arrest was a pretext to search for drugs. On this record, Kull cannot show actual prejudice and we cannot conclude the trial court erred when it did not rule on Kull's arguments in her July 2002 Memo re Motion to Suppress Evidence and Statements.
Kull also argues Officer Clement's testimony that he did not recognize Kull as the driver of the car until after she stopped and got out was not credible. But the trial court explicitly found `the officer's testimony credible,' and Kull does not challenge this finding on appeal. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990) (credibility determinations are for the trier of fact and cannot be reviewed on appeal); State v. O'Neill, 148 Wn.2d 564, 571, 62 P.3d 489 (2003) (unchallenged findings are verities on appeal).
CP at 17.
We affirm.
COLEMAN and BAKER, JJ., concur.