Opinion
No. 22953-0-III.
Filed: April 18, 2006.
Appeal from Superior Court of Spokane County. Docket No: 03-1-02285-4. Judgment or order under review. Date filed: 11/02/2004. Judge signing: Hon. Neal Q. Rielly.
Counsel for Appellant(s), Susan Marie Gasch, Gasch Law Office, PO Box 30339, Spokane, WA 99223-3005.
Counsel for Respondent/Cross-Appellant, Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Andrew J. III Metts, Spokane County Pros Offc, 1100 W Mallon Ave, Spokane, WA 99260-0270.
UNPUBLISHED OPINION
Tommy Joe Wolfe was convicted of possession of a controlled substance with intent to deliver and two counts of third degree assault. On appeal, he contends that the search of his person by law enforcement officers was unlawful and the subsequent discovery of cocaine during the search should have been suppressed by the trial court. He also contends that the trial court erred in imposing an exceptional sentence based on a `free crimes' analysis. The State cross-appeals, claiming that the trial court erred in providing a jury instruction on self-defense when Mr. Wolfe did not present any evidence in support of self-defense.
FACTS
In the early morning hours of December 8, 2003, Officer Michael Carr was on a traffic enforcement patrol when he observed a vehicle pulling out of a parking lot in what he termed a `very quick and very erratic' manner. Report of Proceedings (RP) (Feb. 19, 2004) at 29. Specifically, Officer Carr testified that the vehicle pulled into a parking lot, then `whipped out' of the parking lot and sat astride both lanes for several seconds. RP (Feb. 19, 2004) at 29.
The vehicle then pulled away. As Officer Carr attempted to catch up with the vehicle, it turned into an alley. At this point the officer testified he was concerned both about the manner of driving that he observed and about his own safety.
When he caught up to the vehicle parked in the alley, Officer Carr only had time to place his spotlight on the vehicle and radio in the license plate number before Mr. Wolfe exited the vehicle. The officer did not have his emergency lights activated. Officer Carr exited his patrol vehicle and asked to talk to Mr. Wolfe.
At this point, Mr. Wolfe made a movement toward the waistband of his pants and walked around the front of his car. Mr. Wolfe turned away from the officer and again made a movement toward his waistband. After a few moments he walked over to where Officer Carr was standing. Officer Carr stated that he was concerned about the movements Mr. Wolfe made toward his waistband since it is common for people to hide weapons in this location. Although Mr. Wolfe was not yet informed he was under arrest, the officer testified that Mr. Wolfe was not free to leave at this point.
Officer Jake Jensen arrived shortly thereafter at which time Officer Carr began to pat down Mr. Wolfe for weapons. Officer Carr detected a `hard, round object' in the waistband of Mr. Wolfe's pants in the area toward which Mr. Wolfe had previously gestured. RP (Feb. 19, 2004) at 38. Officer Carr stated that he believed the object that he felt was hard enough to be made of metal. As the officer reached in the waistband to retrieve the object, Mr. Wolfe began to tense and attempt to pull away.
A struggle ensued between Mr. Wolfe and the officers during which Mr. Wolfe eventually freed both of his arms. Mr. Wolfe repeatedly shouted, SYeah, bring it on,' during the fight. RP (Mar. 9, 2004) at 100, 103. Officer Carr took this statement to mean that he and Mr. Wolfe were in a `fight to the finish.' RP (Mar. 9, 2004) at 100. After two to three minutes of fighting and wrestling with the officers, and two jolts from a taser, Mr. Wolfe was finally subdued and handcuffed.
Ultimately two golf ball sized white objects were found in a plastic bag in Mr. Wolfe's pants. These objects turned out to be chunks of cocaine hydrochloride. Mr. Wolfe was charged with two counts of third degree assault based on his altercation with Officers Carr and Jensen and with one count of first degree possession of a controlled substance with intent to deliver.
Mr. Wolfe sought unsuccessfully to suppress any evidence seized from his person (including evidence of the two chunks of cocaine). The trial court concluded that the stop of Mr. Wolfe was lawful since he had committed a traffic infraction. The court also found that the pat down of Mr. Wolfe was lawful based upon Officer Carr's reasonable apprehension for his safety. Therefore, the court denied Mr. Wolfe's motion to suppress.
Even though Mr. Wolfe did not testify and thus did not raise the issue of self-defense through his own testimony, nevertheless, the trial court instructed the jury regarding self-defense. The trial court based its decision on its finding that there was sufficient evidence to support such an instruction and also as an aid to the jury.
The jury convicted Mr. Wolfe of both third degree assault charges, acquitted him of possession of a controlled substance with intent to deliver, but found him guilty of the lesser included offense of possession of a controlled substance. The court imposed an exceptional sentence because, given Mr. Wolfe's offender score, a standard sentence would result in him `receiving no punishment and essentially free offenses,' for some of Mr. Wolfe's prior offenses. RP (Apr. 23, 2004) at 18.
Mr. Wolfe timely appealed the judgment and sentence. The State cross-appealed the self-defense instruction.
I. Lawfulness of the search
Mr. Wolfe contends that the warrantless search was not supported by probable cause. He argues that any evidence that resulted from this search should have been suppressed by the trial court.
Warrantless searches and seizures
Both the Fourth Amendment to the United States Constitution and article 1, section 7 of the Washington Constitution protect against unreasonable searches and seizures. State v. Fields, 85 Wn.2d 126, 130, 530 P.2d 284 (1975). Although both of these provisions protect individual privacy interests, `article I, section 7 provides greater protection of individual privacy than the Fourth Amendment.' State v. Morse, 156 Wn.2d 1, 10, 123 P.3d 832 (2005).
`Under article 1, section 7 of the Washington Constitution, warrantless searches are per se unreasonable.' Id. at 7. While there are exceptions to the warrant requirement, these exceptions are "jealously and carefully drawn." Id. (quoting State v. Reichenbach, 153 Wn.2d 126, 131, 101 P.3d 80 (2004)) (internal quotation marks omitted). When challenged, the State must prove that the warrantless search is justified under an exception to the warrant requirement. State v. Bradley, 105 Wn. App. 30, 36, 18 P.3d 602, 27 P.3d 613 (2001).
A person has been seized "[w]henever a police officer accosts an individual and restrains his freedom to walk away." State v. White, 97 Wn.2d 92, 105, 640 P.2d 1061 (1982) (quoting Terry v. Ohio, 392 U.S. 1, 16, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)). Limited searches and seizures for investigative purposes are permissible only if they are reasonable and based on specific, articulable facts that there is criminal activity afoot. Id. All investigative stops are seizures under article I, section 7. State v. Rankin, 151 Wn.2d 689, 695, 92 P.3d 202 (2004).
If the initial search and seizure was unlawful, then any evidence gained as a direct result of that search is inadmissible as fruits of the poisonous tree. State v. Kennedy, 107 Wn.2d 1, 4, 726 P.2d 445 (1986); Wong Sun v. United States, 371 U.S. 471, 484, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). In determining whether evidence is part of the fruits of an illegal search, courts look to whether the evidence "has been come at by exploitation of that illegality." Wong Sun, 371 U.S. at 488 (quoting Maguire, Evidence of Guilt, 221 (1959)).
Traffic infractions and pretextual stops
One of the exceptions to the warrant requirement is when a law enforcement officer has probable cause to believe that a traffic infraction has occurred in his or her presence. RCW 46.61.021 (2); State v. Chelly, 94 Wn. App. 254, 259, 970 P.2d 376 (1999). While a person may be detained for a reasonable time for certain traffic infractions, Mr. Wolfe alleges that there is no evidence that he committed any traffic infractions. This contention is without merit.
As the State points out there are at least four different infractions that would justify stopping Mr. Wolfe's vehicle for a traffic infraction. Rapidly pulling his vehicle into the street without any turn signals and then stopping the vehicle while straddling both lanes arguably violated the requirements to keep to the right of the roadway (RCW 46.61.100), keep his vehicle within a single lane of travel (RCW 46.61.140), yield to oncoming traffic (RCW 46.61.205), and to use turn signals (RCW 46.61.305). Officer Carr therefore had a valid reason to contact Mr. Wolfe based on a traffic infraction.
Mr. Wolfe next asserts that even if he committed a traffic infraction, the infraction was merely a pretext for a search for evidence of other unrelated criminal activity.
A pretextual traffic stop occurs when police make a stop, not to enforce the traffic code, but to conduct an investigation unrelated to driving. State v. Ladson, 138 Wn.2d 343, 349, 979 P.2d 833 (1999). Pretextual stops `generally take the form of police stopping a driver for a minor traffic offense to investigate more serious violations — violations for which the officer does not have probable cause.' State v. Myers, 117 Wn. App. 93, 94-95, 69 P.3d 367 (2003). The central feature of a pretextual stop is that the stop is a pretext for an investigation to discover grounds for a more extensive search, regardless of whether the pretextual arrest was facially valid. Ladson, 138 Wn.2d at 353-54 .
Pretextual stops do not violate the Fourth Amendment, so long as the underlying stop is based on an actual traffic violation. Whren v. United States, 517 U.S. 806, 809-13, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996). In fact, under the federal standard, the motivations of the individual officers involved are entirely irrelevant to the determination of the reasonableness of the stop. Id. at 812-13.
However, while pretext stops are permitted under the Fourth Amendment, they are not permitted under article 1, section 7 of the Washington Constitution. Ladson, 138 Wn.2d at 352-53 . Under the more restrictive state standard, courts are required to `look beyond the formal justification for the stop to the actual one.' Id. at 353. When determining if a stop is pretextual, courts look to the totality of the circumstances. Id. at 358-59. The court must look both to the objective reasonableness of the officer's behavior and to the subjective intent of the officer. Id. at 359.
There was no indication here that Officer Carr had any intent other than to investigate the `erratic' driving he had witnessed. RP (Feb. 19, 2004) at 29. The officer testified that his two primary concerns were for the manner of driving that he observed and his own safety. The limited search of Mr. Wolfe's person, especially after he had made several gestures toward his waistband, was objectively reasonable and reflects Officer Carr's subjective concern for any possible weapons. As such, there is nothing in the record to indicate that the initial stop of Mr. Wolfe for a traffic infraction was merely a pretext for a more extensive search for evidence of unrelated criminal behavior. Mr. Wolfe's claim that the search of his person was unlawful as a pretextual search is therefore without merit.
Terry investigative stop
Despite defendant's arguments regarding a Terry stop we find there was sufficient evidence to support the stop based on traffic infractions and we need not analyze this case as an exception to a warrant requirement based on crime prevention or detection. State v. Hudson, 124 Wn.2d 107, 112, 874 P.2d 160 (1994).
After Officer Carr contacted Mr. Wolfe, he noticed Mr. Wolfe make several gestures toward his waist. Based on officer safety concerns, as described by Officer Carr, a pat-down search was warranted. The pat-down search was interrupted by Mr. Wolfe's active resistance. This occurred before the officers could identify just what the hard, round, metal-like objects were that could be felt on Mr. Wolfe's person. At that point the officers were not able to verify whether the objects were or were not weapons.
Eventually the objects were seized after Mr. Wolfe was arrested as the result of his resistance. Had the officers seized the two round objects without resistance an argument that the evidence should be suppressed because the officers exceeded the scope of a pat-down search would be more persuasive. But under the scenario created by Mr. Wolfe's resistance the objects were not seized as the result of a pat-down search. Therefore an argument regarding exceeding the scope of a protective weapons search because the objects did not feel like weapons is not relevant and we need not address that issue.
II. Free crimes analysis
The trial court imposed an exceptional sentence of 84 months by running Mr. Wolfe's sentence for possession of a controlled substance consecutive to the sentence for the two assault convictions. The standard sentencing range for Mr. Wolfe would otherwise be 60 months. The trial court based the exceptional sentence on the fact that Mr. Wolfe would not otherwise be held accountable for all of his current offenses. His nine plus offender score would give him `essentially free offenses.' RP (Apr. 23, 2004) at 18. Mr. Wolfe bases his challenge on Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) and State v. Hughes, 154 Wn.2d 118, 110 P.3d 192 (2005).
In Blakely, the United States Supreme Court held that the right to trial by jury includes the right to have a jury determine any fact which could increase the statutory maximum penalty for a crime. 542 U.S. at 303-04 . The statutory maximum is `the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.' Id. at 303.
The `free crimes' analysis applies in those cases where the defendant's offender score exceeds the standard sentencing range guideline grid. See, e.g., State v. Smith, 123 Wn.2d 51, 56, 864 P.2d 1371 (1993), overruled by State v. Hughes, 154 Wn.2d 118, 110 P.3d 192 (2005). As such, imposing a standard range sentence would result in the defendant receiving `free crimes,' meaning that some of the defendant's offenses would go unpunished. Id.
In State v. Hughes, the Supreme Court made clear that the trial court is not permitted to engage in a free crimes analysis to support an exceptional sentence. Specifically, the court held that `[t]he conclusion that allowing a current offense to go unpunished is clearly too lenient is a factual determination that cannot be made by the trial court following Blakely.' 154 Wn.2d at 140 . Because the trial court based Mr. Wolfe's sentence on the free crimes analysis, the court erred in imposing the exceptional sentence. This was not harmless error. See id. at 148. Mr.
Wolfe's sentence should be vacated and this case should be remanded to the trial court for resentencing within the standard range.
III. Self-defense instruction
The State cross-appeals, claiming that the trial court erred by providing the jury with a self-defense instruction when this instruction was not supported by the evidence.
Self-defense was available to Mr. Wolfe only as a defense against the two charges of third degree assault. See RCW 9A.16.020 (defense only applies to situations where the criminal conduct involves the use, attempt, or offer to use force upon or toward another person). The jury convicted Mr. Wolfe of both assault charges.
A case or an issue is moot when the court can no longer provide effective relief. State v. Gentry, 125 Wn.2d 570, 616, 888 P.2d 1105 (1995). This court may still reach the merits of a moot issue if it involves matters of a continuing and substantial public interest. In re Det. of W.R.G., 110 Wn. App. 318, 322, 40 P.3d 1177 (2002). If this court does not find this issue to be of a continuing and substantial public interest, the issue becomes purely academic and therefore inappropriate for this court's review. Gentry, 125 Wn.2d at 616-17 .
Even if we were to rule that Mr. Wolfe was not entitled to the jury instruction regarding self-defense, the issue is moot given that this court cannot provide any effective relief on this issue. The jury's verdict of guilt on the assault charges means that it did not find that Mr. Wolfe acted in self-defense. There is nothing to suggest that this particular issue is of continuing and substantial public interest. Because any ruling on this issue by this court would be purely academic we find the issue moot and affirm the trial court.
We affirm the trial court on Mr. Wolfe's convictions for possession of a controlled substance and assault, but remand for resentencing within the standard sentencing range.
A majority of the panel has determined that 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, J. and BROWN, J., concur.
Judge Philip J. Thompson is serving as judge pro tempore of the Court of Appeals pursuant to RCW 2.06.150 .