Opinion
No. 23927-6-III.
Filed: April 11, 2006.
Appeal from Superior Court of Spokane County. Docket No: 03-1-03087-3. Judgment or order under review. Date filed: 03/01/2005. Judge signing: Hon. Maryann C. Moreno.
Counsel for Appellant(s), Frank Louis Cikutovich, Stiley Cikutovich, 1408 W Broadway Ave, Spokane, WA 99201-1902.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
UNPUBLISHED OPINION
Kevin Neu was arrested for third degree driving with a suspended license. Mr. Neu was charged and convicted of possession of a controlled substance with the intent to deliver, based on marijuana found in his vehicle incident to the arrest. On appeal, Mr. Neu contends the court erred in considering drug evidence found during the search, under City of Redmond v. Moore, 151 Wn.2d 664, 677, 91 P.3d 875 (2004). We affirm.
FACTS
On July 30, 2003, Deputy Jeff Welton stopped Kevin Neu's vehicle because he was not wearing a seatbelt. Mr. Neu identified himself with a `punched' driver's license. Clerk's Papers at 20. A Department of Licensing records search confirmed Mr. Neu's driver's license was suspended in the third degree. Deputy Welton arrested Mr. Neu for third degree driving with a suspended license and searched his vehicle incident to arrest. During the search, Deputy Welton found two baggies of marijuana and a digital scale. Deputy Welton then arrested Mr. Neu for possession of a controlled substance with the intent to deliver. After waiving his Miranda rights, Mr. Neu admitted he bought the marijuana and stated he intended to sell it due to financial difficulties.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Mr. Neu was charged with possessing a controlled substance with intent to deliver. Mr. Neu filed a motion to suppress the marijuana, contending the arrest and subsequent search were invalid under City of Redmond v. Moore, 151 Wn.2d 664, 91 P.3d 875 (2004). However, the matter was not timely noted for a hearing and was not heard by the court. At Mr. Neu's bench trial on stipulated facts, the court proceeded to trial without resolving the search issue. It opined that because the search issue was of constitutional magnitude, it could be resolved on appeal. Mr. Neu was convicted as charged. He appeals.
ANALYSIS
The issue is whether the court erred in considering drug evidence obtained when Deputy Welton searched Mr. Neu's car, incident to his arrest for third degree driving with a suspended license.
We review the trial court's decision to suppress evidence de novo. State v. Myers, 117 Wn. App. 93, 96, 69 P.3d 367 (2003), review denied, 150 Wn.2d 1027, 82 P.3d 242 (2004).
In City of Redmond v. Moore, 151 Wn.2d 664, 667, 668, 91 P.3d 875 (2004), our Supreme Court invalidated two statutes which outline certain license suspension procedures. The Court held that RCW 46.20.289 (no predeprivation hearing for mandatory driver's license suspension) and RCW 46.20.324(1) (mandatory suspension of driver's license under certain conditions) are unconstitutional for lack of sufficient due process, because they fail to provide a formal hearing prior to the suspension of a driver's license. Id. at 672.
However, the Moore court did not invalidate RCW 46.20.342, defining the crime of driving with a suspended license. Rather, it merely held that two means for suspending a driver's license were unconstitutional. State v. Carnahan, 130 Wn. App. 159, 166, 122 P.3d 187 (2005). RCW 46.20.342(1)(c) lists six different reasons to render this type of offense a third degree violation. Solely one reason was invalidated by Moore. State v. Pulfrey, 154 Wn.2d 517, 529, 111 P.3d 1162 (2005). For Mr. Neu to benefit from Moore, he must show that his license suspension fell under the unconstitutional statute. See id. Our record does not show why Mr. Neu's license was suspended. Thus, he cannot show he is entitled to relief. See id.
However, even assuming Mr. Neu's license suspension was unconstitutional, he is still not entitled to relief. In order to justify a search incident to arrest, the original arrest must be lawful. Michigan v. DeFillippo, 443 U.S. 31, 35, 99 S. Ct. 2627, 61 L. Ed. 2d 343 (1979). `An arrest is valid if there is lawful authority for it and it is based on probable cause.' Carnahan, 130 Wn. App. at 165.
Mr. Neu contends no legal authority exists for his arrest. But, `[a]n arrest based on probable cause is generally valid even if it is predicated on a statute subsequently ruled to be unconstitutional.' Id. (citing DeFillippo, 443 U.S. at 37-38). `The arrest is invalid only if the statute at issue is `so grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws." Carnahan, 130 Wn. App. at 165 (quoting DeFillippo, 443 U.S. at 38). Mr. Neu fails to make that showing. All three divisions of this court have decided suppression is not an appropriate remedy under nearly identical circumstances. See Carnahan, 130 Wn. App. 159; Potter, 129 Wn. App. 494; State v. Holmes, 129 Wn. App. 24, 117 P.3d 360 (2005), review granted, 156 Wn.2d 1001 (2006). The remaining question is whether Deputy Welton had probable cause to arrest Mr. Neu for driving with a suspended license. Here, Mr. Neu had a punched license and a Department of Licensing records check confirmed that his license was suspended in the third degree. A Department of Licensing record showing a license is in suspended status is sufficient to establish probable cause for arrest. State v. Gaddy, 152 Wn.2d 64, 74-75, 93 P.3d 872, aff'd, 152 Wn.2d 64, 93 P.3d 872 (2004). Thus, Deputy Welton had probable cause to arrest Mr. Neu.
Additional Grounds
Mr. Neu points out his family and steady work circumstances in deciding whether to uphold the felony drug charge against him. While laudable, these circumstances are not legal cause to change the trial court's sentencing decision.
Affirmed.
A 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 THOMPSON, J. Pro Tem., concur.