State v. Gibson

• Decision Date: 09 November 2009
• Docket Number: No. 37663-6-II.,37663-6-II.
• Citation: 152 Wn. App. 945,219 P.3d 964
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. David GIBSON, Appellant.

219 P.3d 964

152 Wn. App. 945

STATE of Washington, Respondent, v. David GIBSON, Appellant.

No. 37663-6-II.

Court of Appeals of Washington, Division 2.

November 9, 2009.

Eric J. Nielsen, Nielsen Broman & Koch PLLC, Seattle, WA, for Appellant.

Stephen D. Trinen, Pierce County Prosecutors Ofc, Tacoma, WA, for Respondent.

PART PUBLISHED OPINION

BRIDGEWATER, P.J.

¶ 1 David Gibson appeals his conviction for one count of unlawful manufacture of a controlled substance. He contends that the trial court erred in denying his CrR 3.6 motion to suppress evidence. We disagree. Contrary to Gibson's argument, the initial traffic stop of his vehicle was not pretextual. Gibson also urges this court to find the search unreasonable under Arizona v. Gant, ___ U.S. ___, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). But Gant does not compel reversal of Gibson's conviction, even though the deputy searched incident to arrest, because the search was reasonable under the "open view" exception and exigent circumstances. We can uphold the trial court on any valid basis. Finally, Gibson contends, without merit, that he was prejudiced when the trial court untimely filed written findings of facts and conclusions of law. We affirm.

FACTS

¶ 2 On February 22, 2007, several Pierce County Sheriff Department deputies visited a residence located in Pierce County, Washington, near the Pierce-King County line, in an attempt to serve an arrest warrant on an individual not involved in this action. The deputies were unsuccessful in locating the named individual and began to leave the property.

¶ 3 Deputy Jeff England was the first to leave. As he neared the end of the driveway, Deputy England saw a vehicle, about 100 feet away, turn from State Route 165 into a driveway without signaling the turn. Deputy England stopped the vehicle, learned that Gibson was the driver, obtained Gibson's driver's license, and ran a check for warrants. He learned that Gibson had an outstanding Auburn¹ arrest warrant for third degree theft.²

¶ 4 After confirming the arrest warrant, Deputy Robert Tjossem arrested Gibson, handcuffed him, and placed him in the back of a patrol vehicle.

¶ 5 Deputy Tjossem proceeded to walk around Gibson's locked vehicle,³ looked through the windows,⁴ and immediately saw⁵ a few items inside that caught his attention: a bottle of "Drano," a bottle of "Drain Out," and a bag of ammonia sulfate. Clerk's Papers (CP) at 70; VRP (Apr. 3, 2008) at 38-40; II VRP (Jan. 18, 2008) at 24; Ex. 8. Deputy Tjossem had extensive experience in identifying various narcotic-related crimes, particularly methamphetamine manufacturing. Based on his training and experience, Deputy Tjossem recognized that the drain cleaners and ammonium sulfate were chemicals commonly used to manufacture methamphetamine. Deputy Tjossem then pushed open the wing window of Gibson's vehicle, reached in to unlock the door, and entered to secure the items used to manufacture methamphetamine.

¶ 6 Inside Gibson's vehicle, Deputy Tjossem found a 20-pound bag of ammonium sulfate, drain cleaner, dry ice, toluene, coffee filters, a funnel, used coffee filters with white powder, a small bag of white powder, and a coffee grinder that had white residue on the inside. The white residue was later found to be pseudoephedrine. Deputy Tjossem also found a receipt for a 20-pound bag of ammonium sulphate when he searched Gibson's person.

¶ 7 Deputy Tjossem had entered Gibson's vehicle to ensure that the items were secure, as he knew that moving items used to manufacture methamphetamines without proper safety equipment could pose health risks to him and other officers. Once he determined they were secure, he left the items in place, until Deputy Fry obtained a warrant to search and seize the evidence of methamphetamine manufacturing.

¶ 8 Deputy England cited Gibson for failing to signal turn (RCW 46.61.305), no splash apron/fenders (RCW 46.37.500), and unsafe tire tread (RCW 46.37.425). He put the citation in Gibson's pocket. Gibson was transported to Pierce County jail.

¶ 9 On February 23, 2007, Pierce County charged Gibson with one count of unlawful manufacture of a controlled substance. Gibson filed a motion to suppress the evidence under CrR 3.6, claiming that the evidence was unlawfully obtained. During the CrR 3.6 hearing, Gibson argued that the evidence was illegally seized because the initial stop was pretextual, the arrest was invalid, and, due to the invalid arrest, the search incident to arrest was unlawful. The trial court rejected Gibson's arguments and denied his motion for suppression. It entered findings of fact and conclusions of law as to the CrR 3.6 ruling on March 28, 2008.

¶ 10 Gibson waived his right to a jury and proceeded to a bench trial. The trial court found Gibson guilty as charged. Gibson appeals.

ANALYSIS

I. Pretextual Traffic Stop

¶ 11 To review a trial court's ruling on a suppression motion, we examine whether substantial evidence supports the challenged findings and whether those findings support the trial court's conclusions of law. State v. Ross, 106 Wash.App. 876, 880, 26 P.3d 298 (2001), review denied, 145 Wash.2d 1016, 41 P.3d 483 (2002). Substantial evidence is "`evidence in sufficient quantum to persuade a fair-minded person of the truth of the declared premises.'" State v. Jeannotte, 133 Wash.2d 847, 856, 947 P.2d 1192 (1997) (quoting Olmstead v. Dep't of Health, 61 Wash.App. 888, 893, 812 P.2d 527 (1991) (quoting Green Thumb, Inc. v. Tiegs, 45 Wash.App. 672, 676, 726 P.2d 1024)). We do not review credibility determinations on appeal, leaving them to the fact finder. State v. Frazier, 82 Wash.App. 576, 589 n. 13, 918 P.2d 964 (1996) (citing Fisher Props., Inc. v. Arden-Mayfair, Inc., 115 Wash.2d 364, 369, 798 P.2d 799 (1990)). And we treat unchallenged findings as verities on appeal. Ross, 106 Wash.App. at 880, 26 P.3d 298.

¶ 12 Pretextual traffic stops are warrantless seizures that violate article I, section 7 of the Washington State Constitution. State v. Ladson, 138 Wash.2d 343, 358, 979 P.2d 833 (1999). A pretextual traffic stop occurs when an officer does not stop a citizen to enforce the traffic code but rather to investigate suspicions unrelated to driving.⁶ Ladson, 138 Wash.2d at 351, 979 P.2d 833. When the officer stops to actually enforce the traffic code, however, the stop is not pretextual even if the officer also suspects other criminal activity. State v. Hoang, 101 Wash.App. 732, 742, 6 P.3d 602 (2000), review denied, 142 Wash.2d 1027, 21 P.3d 1149 (2001). In determining whether a traffic stop is pretextual, we consider the totality of the circumstances of the stop, including the officer's subjective intent and the objective reasonableness of the officer's behavior. Ladson, 138 Wash.2d at 358-59, 979 P.2d 833.

¶ 13 Gibson relies on Ladson, State v. DeSantiago, 97 Wash.App. 446, 983 P.2d 1173 (1999), and State v. Myers, 117 Wash.App. 93, 69 P.3d 367 (2003), review denied, 150 Wash.2d 1027, 82 P.3d 242 (2004), to support his pretext argument. These cases are factually distinguishable.

¶ 14 In Ladson, the officers admitted that they relied on a vehicle's expired license tabs as pretext to stop a vehicle and investigate suspected drug activity. The officers were part of a "proactive gang patrol" that stopped citizens for traffic code violations, not to enforce the traffic code. Ladson, 138 Wash.2d at 346, 979 P.2d 833.

¶ 15 In DeSantiago, while an officer was monitoring an apartment building for suspected drug activity, he saw the defendant quickly enter and exit the building and drive away. The officer, looking for a reason to stop defendant's vehicle, followed it for several blocks, eventually stopping the vehicle for an illegal left turn. The appellate court reversed the defendant's conviction, holding that the stop was pretextual because the officer was clearly looking for an excuse to investigate suspected drug-related activity. DeSantiago, 97 Wash.App. at 452-53, 983 P.2d 1173.

¶ 16 Finally, in Myers, the defendant drove past an officer who recognized the defendant as having had a suspended license about one year before. The officer was in the area on business, not a routine patrol. The officer suspected that the defendant was driving with a suspended license and followed his vehicle. The officer ran a license check in the midst of following the defendant, but, the officer stopped the defendant before the results of the check returned. Myers, 117 Wash.App. at 95, 97, 69 P.3d 367. The court held that the stop was pretextual because the officer's real purpose in stopping the defendant was to investigate him for driving with a suspended license. Myers, 117 Wash.App. at 97, 69 P.3d 367.

¶ 17 Unlike in each of these cases, in which the officers suspected criminal activity and followed the vehicles looking for an opportunity to stop them for a traffic violation, the deputies here did not follow Gibson's vehicle waiting for him to commit a traffic violation. Ladson, 138 Wash.2d at 346, 979 P.2d 833; DeSantiago, 97 Wash.App. at 452-53, 983 P.2d 1173; Myers, 117 Wash.App. at 97, 69 P.3d 367. Instead, the deputies were leaving a residence after unsuccessfully attempting to serve an arrest warrant on another named individual when Deputy England observed a driver, later identified as Gibson, turn without signaling. Further, Deputy England routinely patrols the area in which he stopped Gibson and he regularly writes infractions for failing to signal turns. These findings are unchallenged and are verities on appeal. Ross, 106 Wash.App. at 880, 26 P.3d 298. Therefore, unlike Ladson, DeSantiago, and Myers, Deputy England did not state, nor can it be inferred, that he intended to use a traffic violation as an excuse to investigate suspected criminal activity.

¶ 18 Moreover, the trial court considered all the testimony and found that the deputies' testimonies were more credible than Gibson's testimony. Gibson challenges one finding of fact, to...