Opinion
No. 37081-6-II.
February 18, 2009.
Appeal from a judgment of the Superior Court for Kitsap County, No. 06-1-01407-1, Leonard W. Costello, J., entered November 19, 2007.
Affirmed by unpublished opinion per Van Deren, C.J., concurred in by Penoyar, J.; Quinn-Brintnall, J., concurring in the result only.
Donald Abe Volden appeals his conviction for one count of possession of a controlled substance. Volden argues that the arresting officer did not have sufficient reason to investigate him and that the assisting officer's pat down search was unwarranted and improper under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Finding no error, we affirm.
FACTS
On September 20, 2006, at 10:30 am, Kitsap County Deputy Sheriff Jon VanGesen observed a Chevrolet pickup truck with expired tabs. VanGesen passed the truck while it waited in a left-turn lane and noted Volden sitting in the passenger seat without a seatbelt. The truck turned into a Fred Meyer store parking lot and VanGesen activated his lights and siren. The truck stopped in front of a Fred Meyer entrance.
VanGesen approached the truck and asked the driver, Russell Larson, for his license, vehicle registration, and insurance information. There were two passengers in the truck: Volden sat in the passenger seat and Krista Kenney sat on the center console. Neither of them wore a seat belt. VanGesen asked for Volden's and Kenney's identification. Volden asked why he had to provide his identification and VanGesen responded: "Because you are not wearing your seatbelt." Report of Proceedings (RP) (Dec. 6, 2006) at 7. Volden and Kenney then provided their identification.
VanGesen testified that Volden questioned the request for identification, but Volden and Kenney testified that it was Kenney who asked why the passengers needed to provide identification. The trial court stated in its findings of fact that "Volden questioned the request for identification." Clerk's Papers (CP) at 23.
At one point, Kenney sat up from her seat, temporarily blocking VanGesen's view of Volden. VanGesen observed Volden "reaching across his body with both hands to his left side and between his seat and the center console area." VanGesen then reached into the vehicle and "pushed K[e]nney back against her seat and ordered Volden to keep his hands out from under the seat." Clerk's Papers (CP) at 23. VanGesen ordered Volden and Kenney to put their hands on the dash and both complied.
Deputy Janson arrived as back-up and removed Volden from the truck. Janson patted Volden down and found a dagger, a glass smoking pipe, and "[a] bag of white powder which field-tested positive for methamphetamine." In the center of the seat, where VanGesen had observed Volden reaching, the deputies found several screw drivers and a "four-or five-inch triangle of metal." RP (Dec. 6, 2006) at 11. The deputies placed Volden under arrest and Janson booked him on charges of methamphetamine possession and possession of a dangerous weapon.
The first name of Kitsap Coupty Deputy Sheriff Janson is not contained in the record before us. He is referred to as Deputy "Janson," Deputy "Jansen," and Deputy "Jensen" in the clerk's papers, report of proceedings, and briefs of appellant and respondent. For consistency we refer to him as Deputy "Janson." This spelling is taken from the Kitsap County Sheriff's Office Incident/Investigative Report. CP at 2.
Volden moved the trial court to dismiss with prejudice and to suppress evidence obtained during the stop. He argued that "the circumstances did not justify Deputy VanGesen's control of [Volden]" because Volden was "not doing anything out of the ordinary." CP at 11. At the 3.6 suppression hearing on Volden's motion, VanGesen testified that he was afraid Volden was reaching for a weapon or attempting to destroy evidence. He stated: "I felt in danger. I felt threatened, and I took action that I needed to [] protect myself." RP (Dec. 6, 2006) at 45.
CrR 3.6 governs suppression hearings. The rule states:
Motions to suppress physical, oral or identification evidence . . . shall be in writing supported by an affidavit or document setting forth the facts the moving party anticipates will be elicited at a hearing, and a memorandum of authorities in support of the motion. . . . The court shall determine whether an evidentiary hearing is required based upon the moving papers.
CrR 3.6(a). The rule further states that, "[i]f an evidentiary hearing is conducted, at its conclusion the court shall enter written findings of fact and conclusions of law." CrR 3.6(b).
VanGesen further testified that he recognized Larson, Volden, and Kenney by name. "After they all provided their identification, I recognized Mr. Larson. I recognized Mrs. Kenney, who was involved in a possession with intent case, and I also recognized Mr. Volden's name, although I didn't know Mr. Volden or Mr. Larson by face up to this point." He stated: "I had been stopped by a detective about two weeks prior who indicated that Mr. Volden was involved in methamphetamine trafficking." RP (Dec. 6, 2006) at 12-13. On cross examination, he testified that he did not recognize them until he obtained their names.
Volden also testified; he stated that he had been wearing his seat belt until the vehicle stopped in front of Fred Meyer. He also testified that "never once did I deny, say I wasn't going to give mine, but I believe Ms. Kenney mentioned, asked why we had to provide [identification]." RP (Dec. 6, 2006) at 25-26. He testified that he was putting his identification back in his wallet when VanGesen grabbed Kenney and pushed her back into her seat.
VanGesen testified that Volden could not have been returning his identification to his pocket because VanGesen still had possession of Volden's identification.
Kenney testified that Volden had been wearing his seat belt. She stated that it was she who questioned VanGesen's authority to ask for the passengers' identification. She further testified that VanGesen threatened them, stating, "I don't know if you two can see my name tag like Mr. Larson can, but you don't know who you are fucking with." RP (Dec. 6, 2006) at 37.
VanGesen admitted using profanity when interacting with the passengers. He stated that he "very rarely" uses profanity during a stop, but in this case Kenney and Volden "upset me that I was in danger with their actions and they weren't complying to my directives when I told them to sit back and get their hands out." He further stated, "I was afraid of what they were doing." RP (Dec. 6, 2006) at 44.
The trial court denied Volden's motion to suppress and on March 2, 2007, entered its findings of fact and conclusions of law on the motion. On November 6, 2007, the trial court entered a verdict on stipulated facts, finding Volden guilty of possession of a controlled substance. Volden was sentenced to 14 months of confinement and up to 18 months of community custody He appeals his conviction.
ANALYSIS
Volden argues that the trial court erred in entering findings of fact consistent with VanGesen's testimony. He repeats his argument that he was wearing his seat belt and VanGesen did not have reason to ask for his identification. He further argues that the State did not offer sufficient evidence to show that the deputies had authority to search his person. Finally, he argues that the search exceed the scope allowed under Terry, and was, therefore, unlawful.
I. Standard of Review
"We review findings of fact on a motion to suppress under the substantial evidence standard." State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999), overruled in part on other grounds by Brendlin v. California, ___ U.S. ___, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007). "Substantial evidence exists where there is a sufficient quantity of evidence in the record to persuade a fair-minded, rational person of the truth of the finding." State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). "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). Therefore, we defer to the fact finder on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992). We review legal conclusions de novo. Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 880, 73 P.3d 369 (2003).
II. Temporary Seizure Justified
Volden argues that the trial court erred in denying his motion to dismiss and his motion to suppress evidence. Specifically, he argues that the trial court erred in not entering findings of fact consistent with the testimony of Kenney and Volden. In his opening brief, Volden states: "Both Mr. Volden and Ms. Kenney testified that Volden was wearing a seatbelt before the truck first left its place of origin." He further argues, "There was no finding of fact entered with regard to the defendant's and with regard to Ms. Kenney's testimony that contradicted VanGesen's testimony. Nor was there any finding of fact that either Mr. Volden or Ms. Kenney were not credible witnesses." Br. of Appellant at 10.
The State argues that Volden's claim regarding the seat belt is "without merit because the trial court clearly accepted the conflicting account of Deputy VanGesen. The trial court's credibility determinations will not be reviewed on appeal." Br. of Resp't at 10. The State further argues that because the deputy had probable cause to believe Volden was not wearing a seat belt, his temporary detention of Volden was lawful. We agree.
VanGesen testified he observed that Volden was not wearing a seatbelt. He stated: "As I passed the vehicle, I looked in the vehicle, observed the defendant seated in the passenger seat with no shoulder belt on." RP (Dec. 6, 2006) at 5. Volden testified, "I was wearing my seatbelt. That was an issue before we left. . . . We talked about it, because the center console doesn't have a seat belt for it." RP (Dec. 6, 2006) at 25. In its written findings of fact, the trial court held that "Deputy VanGesen [] observed the passenger seated against the window was not wearing the shoulder portion of his seatbelt." CP at 22. Where there is inconsistent testimony, we defer to the trial court. Camarillo, 115 Wn.2d at 71; Walton, 64 Wn. App. at 415-16. We hold that the trial court's finding that Volden was not wearing his seat belt is supported by substantial evidence.
Under RCW 46.61.021(2), a police officer may temporarily detain any person who is in violation of a traffic law. Failure to wear a seat belt is a traffic violation. The trial court's finding that VanGesen had sufficient reason to temporarily detain Volden under RCW 46.61.021(2) was also supported by sufficient evidence. Volden's argument to the contrary fails.
RCW 46.61.021(2) states:
Whenever any person is stopped for a traffic infraction, the officer may detain that person for a reasonable period of time necessary to identify the person, check for outstanding warrants, check the status of the person's license, insurance identification card, and the vehicle's registration, and complete and issue a notice of traffic infraction.
RCW 46.61.688(3) states: "Every person sixteen years of age or older operating or riding in a motor vehicle shall wear the safety belt assembly in a properly adjusted and securely fastened manner." RCW 46.61.688(5) states: "A person violating this section shall be issued a notice of traffic infraction."
III. Officers Had Sufficient Reason to Search Volden for Safety Reasons and Under Terry
Volden argues that, because he was a passenger, the trial court erred when it held that the deputies had sufficient reason to order him out of the car and search his person. He further argues that his "movement of returning his wallet to his back, pant pocket was an innocuous event" and that it, therefore, did not warrant a Terry search. Br. of Appellant at 20. Finally, Volden argues that because "the police officer that searched [him] did not testify," the State did not meet its burden of proof. Br. of Appellant at 20.
Volden also argues that the trial court erred in entering findings of fact consistent with VanGesen's testimony that Volden made a "[ f] urtive [ m] ovement." Br. of Appellant at 11. As stated above, the trial court's findings of fact are reviewed under a substantial evidence standard, and this court defers to a trial court's credibility determinations. Camarillo, 115 Wn.2d at 71.
The State argues that the deputies had a "specific and articulable concern[] for [their] safety," justifying the search of Volden. Br. of Resp't at 14. The State further argues that the trial court's findings of fact are consistent with VanGesen's testimony that Volden made a furtive gesture. Finally, the State argues that Volden cannot appeal the scope of the search, since Janson did not testify and the facts are not in the record.
The State also argues that Volden's status as a passenger was irrelevant due to his violation of a traffic law. The State notes that Mendez requires officers to have objective rationale before ordering a "`nonsuspected, nonarrested passenger[]'" out of a vehicle. Br. of Resp't at 13 (quoting State v. Horrace, 144 Wn.2d 386, 393, 28 P.3d 753 (2001)). The State argues that Volden does not qualify, since he was in violation of a traffic law. It is not clear from Horrace or Mendez whether a passenger must be "nonsuspected" only of criminal activity, or if this also includes traffic violations, though the Mendez decision does note that traffic violations do not constitute criminal activity. See 137 Wn.2d at 214 n. 2. For purposes of this decision, we assume that Volden maintained his status as a passenger.
The Fourth Amendment of the United States Constitution gives an individual "the right to privacy, meaning that person has the right to be left alone by police unless there is probable cause based on objective facts that the person is committing a crime." State v. Grande, 164 Wn.2d 135, 141, 187 P.3d 248 (2008). The Washington Constitution protects the right to privacy; "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law." Wash. Const. art I, § 7. We presume warrantless searches and seizures invalid unless an exception applies. State v. Rankin, 151 Wn.2d 689, 698-99, 92 P.3d 202 (2004).
In Rankin, the Washington Supreme Court held that article I, section 7 of our state constitution "prohibits law enforcement officers to effect a seizure against [a vehicle] passenger unless the officer has an articulable suspicion that that person is involved in criminal activity." State v. Grande, 164 Wn.2d at 141. In Mendez, the Court further found that when officers seize a passenger in order to secure a scene, the officers need only meet an objective rationale standard, but "where `the purpose of the officer's interaction with the passenger is investigatory,' the officer must meet the higher Terry standard." State v. Horrace, 144 Wn.2d 386, 393, 28 P.3d 753 (2001) (quoting Mendez, 137 Wn.2d at 220). We must, therefore, consider whether the Mendez objective rationale standard or the heightened Terry standard applies to the facts here.
A. Mendez
Under Mendez, the police must "be able to articulate an objective rationale predicated specifically on safety concerns, for officers, vehicle occupants, or other citizens, for ordering a passenger to stay in the vehicle or to exit the vehicle." 137 Wn.2d at 220 (emphasis added). This standard is appropriate where the officer is ordering the passenger to take certain action in an effort to "`control[] the scene.'" State v. Parker, 139 Wn.2d 486, 502, 987 P.2d 73 (1999) (quoting Mendez, 137 Wn.2d at 220).
When determining whether officers had an objective rationale to search a passenger, courts should consider "the circumstances present at the scene of the traffic stop." Mendez specifically articulates some of the relevant factors: "the number of officers, the number of vehicle occupants, the behavior of the occupants, the time of day, the location of the stop, traffic at the scene, affected citizens, or officer knowledge of the occupants." 137 Wn.2d at 221.
In this case, the stop occurred during daylight, at 10:30 am. It occurred in a busy Fred Meyer parking lot near the entrance to the store. There were three passengers in the vehicle and, at least initially, only one officer at the stop. Before VanGesen obtained back up, Volden made a movement toward the center of the vehicle with both hands. After receiving identification from the driver and passengers, VanGesen recognized Kenney, "who was involved in a possession with intent case" and also recognized the names of Larson and Volden as possible participants in methamphetamine trafficking. At the time Volden was ordered out of the vehicle, his hands were on the dash and a second officer was present.
We believe that these circumstances caused reasonable fear for officer safety and the safety of others in the vehicle and in the surrounding shopping area parking lot, such that the search was conducted in an effort to secure the scene. The evidence also suggests that the deputies searched Volden pursuant to Volden's movement toward the center console when Kenney leaned forward and obscured VanGesen's view of Volden's hands and based on VanGesen's knowledge that the driver and the passengers were suspected of involvement in methamphetamine trafficking. The search served both purposes: to secure the scene and to independently investigate Volden. Nevertheless, we briefly analyze the ensuing search under the more stringent Terry standard.
The Washington Supreme Court similarly applied Terry in Horrace, when a police trooper pulled over a vehicle for driving at excessive speeds. The driver produced a suspended license, so the trooper asked Horrace, the only passenger, if he had a valid license in order to drive the vehicle away. While checking Horrace's license at the patrol car, the trooper observed the driver leaning toward the passenger seat. After the trooper arrested the driver, he ordered Horrace to step out of the car and conducted a pat down search. Horrace, 144 Wn.2d at 388-90.
The Court determined that the more stringent Terry standards applied because the trooper "did not ask Horrace to exit simply as a means of `controlling the scene,'" Horrace, 144 Wn.2d at 393-94 (internal quotation marks omitted) (quoting Parker, 139 Wn.2d at 502), but rather "believed that Horrace posed an independent threat to his safety. The trooper's interaction with Horrace was thus investigatory and, as such, was subject to the stop-and-frisk standards set forth in Terry. Horrace, 144 Wn.2d at 394.
B. Terry
Under Terry, "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." 392 U.S. at 21.
[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, . . . he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.
Terry, 392 U.S. at 30-31. "Probable cause is not required for a Terry stop because a stop is significantly less intrusive than an arrest." Mendez, 137 Wn.2d at 223.
VanGesen testified to specific and articulable facts showing that he had reason to believe Volden had engaged, or was about to engage, in criminal conduct. First, VanGesen recognized Volden as someone who was suspected of engaging in methamphetamine trafficking. Second, Volden questioned VanGesen's authority to ask for his identification as a passenger. Finally, Volden's furtive movement toward the center of the vehicle gave VanGesen reasonable suspicion that Volden was hiding or destroying evidence or that he was carrying a weapon. Indeed, Volden's movement alone provided sufficient reason for the deputies to search him. See State v. Watkins, 76 Wn. App. 726, 730, 887 P.2d 492 (1995) (finding that the officers "clearly had authority to ask [the defendant] to exit the car and search the area within his immediate control for weapons based on [his] furtive movements alone"); State v. Wilkinson, 56 Wn. App. 812, 815, 785 P.2d 1139 (1990) ("An officer who properly stops a car may conduct a search for weapons within the immediate control of the driver and passengers when one of the persons in the car moves as if to hide a weapon.").
Because VanGesen pointed to specific and articulable facts justifying the removal of Volden from the vehicle and his subsequent search, the deputies were justified in conducting a Terry pat down of Volden and the trial court's finding is supported by substantial evidence.
III. Scope of Terry Search Not Appealable
Volden argues that "[t]here was no testimony to determine if the manner of searching Volden's person was permissible under Terry," because "the police officer that searched Volden did not testify" at the suppression hearing. Br. of Appellant at 20. The State counters that "the officer who performed the search, Deputy J[a]ns[o]n, did not testify. This was undoubtedly because it was never suggested below that the [scope of a permissible] pat-down was exceeded. Volden thus raises this issue for the first time on appeal." Br. of Resp't at 16 (citations omitted).
An inadequate record precludes meaningful review. State v. Locati, 111 Wn. App. 222, 226, 43 P.3d 1288 (2002). Here, the officer who conducted the search of Volden did not testify at the suppression hearing. Because Volden implies that the search exceeded the allowable Terry scope, he alleges facts not in the record. Therefore, we decline to consider the scope of the Terry pat down.
We affirm.
Penoyar, J., concur:
Quinn-Brintnall, J., I concur in the result only.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.