Opinion
No. 52529-8-I
Filed: May 16, 2005
Appeal from Superior Court of Snohomish County. Docket No: 03-1-00981-9. Judgment or order under review. Date filed: 06/13/2003. Judge signing: Hon. Gerald L Knight.
Counsel for Appellant(s), Charles Franklin Blackman, c/o Snohomish County Pros, 3000 Rockefeller Ave, Everett, WA 98201-4061.
Counsel for Respondent(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Harlan R Dorfman, Attorney at Law, PO Box 75505, Seattle, WA 98175-0505.
David Bruce Koch, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Under RCW 46.20.349, an officer may stop a motor vehicle to determine if the driver is the registered owner of the vehicle if the officer has information that the registered owner of the vehicle has a suspended license. A stop under RCW 46.20.349 is constitutional because the officer has a reasonable articulable basis to believe that criminal conduct is occurring that the registered owner of the vehicle is driving with a suspended license. State v. Penfield, 106 Wn. App. 157, 161, 22 P.3d 293 (2001). Once it becomes apparent that the driver of the vehicle is not the registered owner, the articulable suspicion supporting the stop no longer exists, absent some additional evidence of wrongful activity. Penfield, 106 Wn. App. at 162. Here, we hold that the trial court erred in suppressing the evidence because RCW 46.20.349 justified the initial stop and the furtive movements justified the continuation of the detention. Therefore, we reverse and remand to the trial court for further proceedings.
FACTS
The facts are based on the officer's certificate of probable cause. The parties agreed to proceed with the hearing on the motion to suppress based on the contents of the certificate.
Bothell Police Officer Louise Muro ran a vehicle registration check on a vehicle traveling in front of her. Muro learned that the car was registered to Donte Young, an African-American male. Muro also learned that Young's license was suspended. Muro could see that two people were in the car, but could not determine the gender of the driver. Muro pulled the car over. As the car came to a stop, Muro saw both occupants of the car make furtive movements consistent with putting on their seat belts. Muro called for backup. As Muro approached the car, she noticed that the driver was a Caucasian female and the passenger was an African-American male.
Muro told the occupants the reason for the stop, and both admitted that they were not wearing their seat belts while the vehicle was in motion. Muro requested identification from both occupants and learned that Young was the passenger. Further inquiry revealed that the driver had a suspended license and an outstanding warrant. Muro arrested the driver, while the backup officer, Officer Blessum, observed Young. The driver told Muro that there was a weapon underneath the front passenger seat. Muro alerted Blessum, who removed Young from the vehicle and secured him. The officers searched the car incident to arrest and found a loaded gun, ammunition, and drug paraphernalia. Muro arrested Young for investigation of unlawfully carrying a firearm and advised him of his Miranda rights. Young stated that he understood his rights. During the subsequent interview, Young admitted to possessing the firearm.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The State charged Young with first degree unlawful possession of a firearm. Young moved to suppress the gun found during the search, arguing that the initial stop was unconstitutional. The trial court granted the motion, and the case was dismissed. The State appeals.
ANALYSIS
As an initial matter, Young attempts to challenge one of the trial court's findings of fact. If a party fails to object to an alleged error before the trial court, the party cannot raise the issue on appeal. State v. Mierz, 127 Wn.2d 460, 468, 901 P.2d 286 (1995). Here, Young drafted the finding and did not object to it before the trial court, and he therefore cannot challenge it on appeal.
We first address whether the trial court erred in concluding that the traffic stop was unconstitutional because the officer failed to confirm that the physical description of the driver matched that of the 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.'' City of Seattle v. Yeager, 67 Wn. App. 41, 46, 834 P.2d 73 (1992) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)). An articulable suspicion is a substantial possibility that criminal activity occurred or is about to occur. State v. Kennedy, 107 Wn.2d 1, 5, 726 P.2d 445 (1986).
In Yeager, this court upheld the constitutionality of RCW 46.16.710(3), which allowed an officer to stop a vehicle with marked license plates, indicating that the registered owner of the vehicle had a suspended driver's license, to determine if the registered owner of the vehicle was driving. The Yeager court held that when the officer noted the marked license place, he had a reasonable articulable suspicion that criminal activity was occurring that the driver was operating the vehicle without a valid license. Similarly, the Penfield court held that the statute at issue here, RCW 46.20.349, is constitutional. Penfield, 106 Wn. App. at 161. Under this statute:
Any police officer who has received notice of the suspension or revocation of a driver's license from the department of licensing, may, during the reported period of such suspension or revocation, stop any motor vehicle identified by its vehicle license number as being registered to the person whose driver's license has been suspended or revoked. The driver of such vehicle shall display his driver's license upon request of the police officer.
An investigative stop under RCW 46.20.349 is constitutional because the law enforcement officer has an articulable suspicion that criminal conduct occurred that the registered owner of the vehicle was driving without a valid license. Penfield, 106 Wn. App. at 161. Young does not challenge the validity of the statute. Rather, he argues that in this case, Muro did not have an articulable suspicion under Terry because she did not attempt to ascertain the physical characteristics of the driver and compare them with the information known about the registered owner of the vehicle. The trial court accepted Young's argument and determined that the initial stop was impermissible.
The State argues that the trial court erred in accepting this argument. The State relies on Penfield, 106 Wn. App. 157. In Penfield, a police officer ran a vehicle registration check and determined that the registered owner, a female, had a suspended license. The officer was unable to get a clear view of the driver, except to note that the driver had a ponytail, because the car had tinted windows. The officer pulled the car over. As he approached the vehicle, he noticed that the person driving the car was male. Despite this, he asked the driver, Dennis Penfield, for his license and Penfield told the officer that his license had been suspended. Penfield also had an outstanding warrant, so the officer arrested him. During a search incident to arrest, the officer found drugs. Penfield moved to suppress the evidence, arguing that the initial stop was unconstitutional. The Court of Appeals held that RCW 46.20.349 is constitutional, but that the officer's articulable suspicion justifying the stop dissipated as soon as he realized that Penfield could not be the registered owner of the vehicle. At this point, absent additional articulable facts that illegal activity occurred, the officer was no longer justified in detaining Penfield. Penfield, 106 Wn. App. at 162.
Division Three recently clarified its Penfield decision in State v. Phillips, Wn. App., 109 P.3d 470 (2005). There, Phillips was stopped after a police officer ran a random vehicle registration check on the vehicle Phillips was driving and determined that the registered owner's license was suspended. The trial court dismissed the case, concluding that before stopping a person under RCW 46.20.349, an officer must establish that the person driving the vehicle fits a minimum description of the registered owner of the vehicle. The Court of Appeals reversed, holding that Penfield does not require an officer to make an affirmative comparison between the physical description of the registered owner and the person driving the vehicle. Rather, `Penfield require[s] the officer to respond to the obvious. The law encourages officers to proceed on the reasonable suspicion that the registered owner of the vehicle is driving, absent some manifest reason to believe otherwise.' Phillips, 109 P.3d at 471.
Here, Muro stated in her report that she was unable to determine whether the driver was male or female when she stopped the car. Although noting some skepticism, the trial court accepted the officer's report, specifically finding that `Officer Muro could not tell whether the driver of the car was male or female, black or white.' Thus, under Yeager, Penfield, and Phillips, the initial stop was constitutional because the registered owner of the car had a suspended license and there was no `manifest reason' to believe that anyone other than the registered owner was driving the car. Once Muro saw that a Caucasian female was driving, her initial justification for the stop terminated and she could `continue to detain the driver only if some other fact gave rise to an articulable suspicion of [wrongful] activity.' Penfield, 106 Wn. App. at 162. Thus, we must determine if this standard is satisfied.
Muro testified that as the vehicle came to a stop, she noticed both passengers make `furtive movements consistent with each putting on their seatbelts.' The issue before us is whether these `furtive movements' were sufficient to give Muro an articulable suspicion that illegal activity had occurred. Furtive movements of other types for example repeatedly putting hands in pockets, State v. Harper, 33 Wn. App. 507, 511, 655 P.2d 1199 (1982), and reaching under the seat of the car, State v. Larson, 88 Wn. App. 849, 855, 946 P.2d 1212 (1997) have justified frisks for officer safety under Terry. Here, there is no allegation that Muro was concerned about her safety. The movements consistent with putting on seat belts, however, do provide for a substantial likelihood that wrongful activity occurred that the occupants were not wearing their seat belts while the car was in motion and were attempting to put the seat belts on before the officer noticed their violation. This was sufficient to justify further inquiry under Terry.
Here, both the driver and Young admitted to not wearing their seat belts while the vehicle was in motion. This led to the discovery of the driver's outstanding warrant, the search of the vehicle, and Young's eventual arrest. Under these circumstances, the stop was constitutional and the trial court erred in suppressing the evidence obtained in the subsequent search. Therefore, we reverse the decision of the trial court suppressing the evidence and remand to the trial court for further proceedings.
In his briefing, Young challenged the constitutionality of Washington's seat belt law. In light of the Supreme Court's decision in State v. Eckblad, 152 Wn.2d 515, 98 P.3d 1184 (2004), Young withdrew his challenge to the constitutionality of the law at oral argument before this court.
GROSSE and COX, JJ., concur.