State v. Brown, No. 29142-8-II (Wash. App. 1/6/2004)
| Decision Date | 06 January 2004 |
| Docket Number | No. 29142-8-II,29142-8-II |
| Parties | STATE OF WASHINGTON, Respondent, v. BYRON LEE BROWN, Appellant. |
| Court | Washington Court of Appeals |
Appeal from Superior Court of Clark County. Docket No: 02-1-00078-9. Judgment or order under review. Date filed: 06/21/2002.
Counsel for Appellant(s), Suzan L. Clark, Attorney at Law, 1101 Broadway St Ste 250, Vancouver, WA 98660-3320.
Counsel for Respondent(s), James Everett David, Attorney at Law, Clark Co Pros Attys Offc, PO Box 5000, Vancouver, WA 98666-5000.
Byron Lee Brown appeals his convictions of multiple felony counts of forgery, identity theft, and possession of stolen property. He challenges the police search of his person, reasoning that the police had no reason to stop the car in which he was a passenger and that he did not consent to the search. Brown also argues insufficiency of the evidence and contends that his identity theft and possession of stolen property convictions merge, encompass the same criminal conduct for sentencing purposes, and violate double jeopardy. Finally, Brown argues that the sentencing court erred when it imposed an exceptional sentence. We find no error and, thus, affirm.
At approximately 10:48 p.m. on January 4, 2002, Vancouver Police Officer Jim Watson was driving eastbound on Northeast 2nd Street when a station wagon displaying an Oregon trip permit passed him. Watson testified that he stopped the vehicle because it displayed `an illegal Oregon trip permit.' Report of Proceedings (RP) II at 24. Because his vehicle's spotlight was not functioning, Watson approached the passenger side of the station wagon and asked for the driver's license. The driver handed the license to Officer Mark Blaisdell, who had just arrived to assist Watson. The passenger in the station wagon was Byron Lee Brown.
Watson asked Brown if he could have his name and Brown replied, and provided a middle name beginning with `D.' RP II at 27. In response to Watson's request for his birth date, Brown stated: `June,' then stuttered `Sixth—I mean, seventh, `77.' RP II at 28. When asked if he was sure of this information, Brown repeated `June 7, `77.' RP II at 28. Brown told Watson he was from California.
Watson then checked the driver's license, the name the passenger provided, and the station wagon's license plate. This records check revealed that the license plate was not valid.1 The station wagon was not registered under the driver's name or the name Brown supplied. In fact, the records check revealed that there was no record of a `Jemeliah D. Johnson.' Watson re-contacted Brown to confirm that this name was correct. After at least two more attempts to retrieve a record under this name were unsuccessful, Watson asked Brown if he had any identification, to which Brown replied that he did not because he had forgotten it in California. Watson then asked Brown, `So if I checked your pockets right now, I wouldn't find any identification?' RP II at 30. After Brown answered `No,' Watson asked, `Would you mind if I checked you?' RP II at 30. Brown said he would not, stepped out of the station wagon without being asked, and raised his arms.
When Watson searched Brown's pocket, he discovered what he thought was a wallet. But the item was actually a case containing a palm pilot or a similar device. Watson then opened the case and discovered a credit card with the word `Plotinum' written across the top and bearing the name `Tim W. Cross' and a hotel key card. RP II at 30-31.
After learning that Brown was staying across the street at an Extended Stay America hotel, Watson asked Brown to `have a seat in the back of {his patrol} car,' placing him under `investigative detention.' RP III at 131. The night manager of the hotel confirmed that the key belonged to the hotel and identified the person staying in the room as `Byron Black.' RP III at 132. Watson brought Brown to the hotel and the night manager immediately identified him as Byron Black. Watson's investigation at the hotel also revealed that the driver's license number Brown provided to the hotel belonged to a Felicia R. Perez of Indio, California.
Further investigation revealed that MBNA, the bank named on the `Plotinum' card, has the word `Platinum' on its cards and that the first four letters on actual MBNA cards are `5490' as opposed to the `5491' on the `Plotinum' card. RP II at 36-37. Watson placed Brown under arrest after conferring with Detective Troy Price of the Vancouver Police Department's Fraud, Forgery, and Electronic Crimes Unit.
Price later obtained a search warrant for Brown's hotel room. There the officers found a laptop computer, portable printer, two fake California drivers' licenses bearing the names of `Byron Lee Black' and `Eric Sultzer' in different stages of completion, razor blades, a straight edge, a card reader/writer, and software capable of reading the information in a magnetic strip on the back of a card and recording it on the back of another card, and an `Action' Visa card in the name of `Eric Sultzer.' RP III at 160-75.
The State charged Brown with two counts of forgery, eleven counts of second degree identity theft, and eleven counts of second degree stolen property. During trial, the State dismissed two of the possession of stolen property charges. A jury convicted Brown of eleven counts of second degree identity theft, nine counts of second degree possession of stolen property, and two counts of forgery. The trial judge imposed an exceptional sentence of 114 months, with counts 18, 20, 21, 22, 23, and 24 to be served consecutively to the remaining counts.
Whether a seizure has occurred is a mixed question of law and fact. State v. Rankin, 108 Wn. App. 948, 954, 33 P.3d 1090 (2001), review granted, 147 Wn.2d 1014 (2002). When reviewing facts entered following a motion to suppress, an appellate court reviews only those facts to which error has been assigned. State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994). If substantial evidence in the record supports the challenged facts, those facts are binding on appeal. Hill, 123 Wn.2d at 647. And unchallenged findings are verities on appeal. City of Seattle v. Muldrew, 69 Wn.2d 877, 878, 420 P.2d 702 (1966). But the ultimate determination of whether the facts constitute a seizure is a question of law, which we review de novo. Rankin, 108 Wn. App. at 954.
Brown contests the validity of the initial stop, arguing that it was permissible to operate the vehicle in Washington with an Oregon trip permit. Brown reasons that the vehicle complied with Washington's vehicle registration and licensing reciprocity statutes and administrative regulations. See also RCW 46.16.030; RCW 46.85.060, .080; WAC 308-99-040. Thus, according to Brown, because Washington trip permits are valid in Oregon, and Washington honors trip permits from other jurisdictions provided there is no violation of issuing jurisdiction restrictions, the trip permit here allowed the driver to lawfully operate the vehicle in Washington under the reciprocity statutes. We disagree.
Because the car did not have a valid license plate, the Oregon trip permit provided the only lawful authority to operate it. But except in very limited circumstances not applicable here, an Oregon trip permit may be used only in Oregon. See ORS 803.600(1)(c). Driving the car in Washington was a violation of Oregon's restriction on the use of its permit. RCW 46.16.010. Accordingly, Washington's reciprocity statutes do not authorize the car's use in Washington.
To justify a seizure on less than probable cause, there must be a reasonable, articulable suspicion, based on specific, objective facts, that the person seized has committed or is about to commit a crime. State v. Duncan, 146 Wn.2d 166, 172, 43 P.3d 513 (2002) (citing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)). The level of articulable suspicion required for a vehicle stop is no greater than that required for a pedestrian stop. State v. Kennedy, 107 Wn.2d 1, 6, 726 P.2d 445 (1986) (citing Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d. 660 (1979)). Stopping an automobile is reasonable if there is probable cause to believe that a traffic violation has occurred. State v. Chelly, 94 Wn App. 254, 259, 970 P.2d 376 (1999).
Because failure to initially register a vehicle is a misdemeanor, Watson had a valid reason to stop the station wagon in which Brown was a passenger. See RCW 46.16.010(1).
Brown also argues that the police exceeded the permissible scope of the initial traffic stop and lacked a reasonable articulable suspicion to extend the encounter. The State responds that Brown was not seized until after the officers discovered the forged credit card, and that even if he was seized before that time, the officers had the authority to detain him.
A driver is seized when a police officer signals the driver to stop after a traffic infraction. State v. Mendez, 137 Wn.2d 208, 222, 970 P.2d 722 (1999).2 But a passenger is not automatically seized during a traffic stop. Mendez, 137 Wn.2d at 222 (); but see State v. Ladson, 138 Wn.2d 343, 350, 979 P.2d 833 (1999).
An officer may not require a passenger to provide identification unless the circumstances provide an independent basis to question the passenger. State v. Larson, 93 Wn.2d 638, 611 P.2d 771 (1980); Rankin, 108 Wn. App. at 954. But an officer may request identification, even in the absence of an articulable suspicion of wrongdoing. State v. O'Neill, 148 Wn.2d 564, 577, 62 P.3d 489 (2003); Rankin, 108 Wn. App. at 954. Such a request for identification from a passenger, without...
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