State v. Horrace, 69613-6.

• Decision Date: 02 August 2001
• Docket Number: No. 69613-6.,69613-6.
• Citation: 28 P.3d 753,144 Wash.2d 386
• Parties: STATE of Washington, Respondent, v. Ronald J. HORRACE, Petitioner.
• Court: Washington Supreme Court

28 P.3d 753

144 Wash.2d 386

STATE of Washington, Respondent, v. Ronald J. HORRACE, Petitioner.

No. 69613-6.

Supreme Court of Washington, En Banc.

Argued January 30, 2001.

Decided August 2, 2001.

Thomas Edward Doyle, Hansville, for Petitioner.

Jeremy Randolph, Lewis County Prosecutor, J. Andrew Toynbee, Deputy, Chehalis, for Respondent.

OWENS, J.

In this case we must decide whether a trooper's pat-down search of a vehicle passenger, following the arrest of the vehicle's driver, was constitutionally sound. The trooper's limited, protective search led to petitioner Ronald J. Horrace's arrest for possession of a concealed weapon. Pursuant to the heightened search incident to that arrest, Horrace was charged with possession of methamphetamine while armed. The trial court denied Horrace's motion to suppress. The Court of Appeals affirmed, concluding that the initial protective search had been based on specific, articulable facts supporting an objectively reasonable belief that Horrace was armed and dangerous. We agree and therefore affirm the Court of Appeals.

FACTS

On May 26, 1997, at around 1:15 a.m., a Washington State trooper monitoring traffic on I 5 in Lewis County observed a northbound vehicle that appeared to be exceeding the posted speed limit of 70 m.p.h. After receiving a radar reading of 78 m.p.h., the trooper pulled the vehicle over, stopping about one car-length behind it and illuminating its interior with the spotlight on his patrol car. The streetlights for the off ramp in the distance were too far away to be of any benefit. Defendant Ronald Horrace, the only passenger, was seated in the right front passenger seat. The trooper approached on the passenger side of the vehicle, away from the traffic, and asked the driver for identification. The driver produced a Washington driver's license that had a hole punched in it, indicating that he had been stopped before and was driving on a suspended license, a circumstance he admitted. Thinking Horrace could drive the vehicle away and eliminate the need to impound it, the trooper asked Horrace if he had a valid driver's license. As Horrace took out his license, the trooper could see inside Horrace's oversized wallet.

From the radio check, the trooper learned that Horrace's license was valid, that the driver was driving with a suspended license, and that there were several outstanding warrants for the driver's arrest. While waiting for the results of the radio check, the trooper observed the driver leaning to his right, tipping his right shoulder down, as though he were "doing something down between the seats." Report of Proceedings (RP) (Aug. 8, 1997) at 12. The driver's "movements toward the center console of the vehicle and in [Horrace's] direction" concerned the trooper. Clerk's Papers (CP) at 29. The trooper believed that the driver "could have been retrieving a weapon for when [he] went back up there or concealing a weapon." RP (Aug. 8, 1997) at 12. Returning to the vehicle and placing the driver under arrest, the trooper asked him "what all the movement was up there," and the driver responded, "My butt itches, I was scratching it." Id. at 13.

After placing the driver in his patrol car, the trooper returned to the passenger side of the vehicle, asked Horrace to step out, and told him he "was going to pat him down for weapons." Id. at 14. Although the driver's movements had initially caused the trooper more concern, he had also been concerned about the passenger. The trooper wanted to do the pat-down search because of the driver's movements, which had raised the possibility of a concealed weapon, and because of Horrace's "close proximity to the console area where the gestures were being made." Id. at 29. The trooper observed that it would have been "easy to conceal something behind or inside" Horrace's heavy leather jacket with its numerous pockets. Id. at 14.

Prior to the pat-down search, the trooper asked Horrace if he had any guns, knives, or needles on his person, and Horrace said he did not. The trooper "felt a large bulge in [Horrace's] left breast pocket area of the jacket." Id. at 15. When asked about it, Horrace identified it as "some stuff." Id. From the pocket, the trooper removed two walnut shells, a piece of cloth, and a small, leather, zippered container that the trooper described as cylindrical and "very heavy and hard feeling." Id. at 16. The trooper unzipped the container and found a number of bullets. The trooper asked Horrace several times whether he was carrying a gun, and Horrace repeatedly said he was not. Continuing the pat-down search, the trooper found a loaded pistol magazine in Horrace's lower-left jacket pocket. When the trooper asked where the gun was, Horrace said it was under the seat. The trooper stepped forward and looked under the passenger seat, where he saw the gun lying on the floor. The trooper asked Horrace if he had a concealed weapons permit, and Horrace said he did not. Without retrieving the gun, the trooper continued his pat-down search. Horrace told the trooper that he had a knife, and the trooper removed a switchblade from the right front pocket of Horrace's pants. The trooper arrested and handcuffed Horrace.¹ Continuing the search, the trooper found in Horrace's pants pocket a small pipe that smelled of marijuana. The trooper then opened Horrace's wallet without removing it from the chain attaching it to a belt loop. Inside the wallet was a small plastic bag containing a tan-colored powder later identified as methamphetamine. Because the trooper had not seen the plastic bag in Horrace's wallet earlier when Horrace had produced his driver's license, the trooper asked him where the bag had come from, and Horrace answered, "`Mike gave it to me, he figured he was going to jail.'" CP at 30.

Pursuant to former RCW 69.50.401(d) (1997), 9.94A.310 (1997), and 9.94A.370 (1996), Horrace was charged with possession of methamphetamine while armed with a firearm. A second count, unlawful possession of a firearm in the second degree, was dismissed prior to trial. The trial court denied Horrace's pretrial motion to suppress evidence of the methamphetamine seized pursuant to the warrantless search. At trial, Horrace testified that, while the trooper was running the radio check, the driver was "moving around digging" between the seats for "[m]ore than a minute" and had been "trying to hide stuff." RP (Aug. 20, 1997) at 87, 88, 92. Horrace maintained that the driver had slipped the methamphetamine into his wallet as it lay open in his lap. The jury returned a verdict of guilty as charged and found that Horrace was armed with a firearm at the time of the commission of the crime. Horrace's sentence was within the standard range and included the firearm enhancement.

Horrace appealed, contending that the trial court had erred in denying his motion to suppress. The Court of Appeals affirmed. We granted Horrace's petition for review and remanded the case to the Court of Appeals for reconsideration in light of State v. Parker, 139 Wash.2d 486, 987 P.2d 73 (1999). The Court of Appeals concluded that its prior opinion was consistent with Parker and should remain the same. This court granted Horrace's subsequent petition for review.

ISSUE

Did the trooper base his pat-down search of Horrace, a vehicle passenger, on specific, articulable facts supporting an objectively reasonable belief that Horrace was armed and dangerous?

ANALYSIS

Because Horrace did not assign error to any of the trial court's findings of fact, those findings are verities on appeal. State v. Stenson, 132 Wash.2d 668, 697, 940 P.2d 1239 (1997); State v. Hill, 123 Wash.2d 641, 644, 647, 870 P.2d 313 (1994). This court reviews de novo Horrace's challenges to the trial court's conclusions of law. State v. Johnson, 128 Wash.2d 431, 443, 909 P.2d 293 (1996). Horrace assigned error to the trial court's conclusion that the trooper "was justified in patting the defendant down for weapons for officer safety purposes." CP at 31-32. Horrace claims that the pat-down search for weapons violated his rights under the Fourth Amendment of the United States Constitution and article I, section 7, of the Washington State Constitution.

In two relatively recent cases, we examined the privacy rights of vehicle passengers in light of the broad protection afforded under article I, section 7. See Parker, 139 Wash.2d 486,987 P.2d 73; State v. Mendez, 137 Wash.2d 208, 970 P.2d 722 (1999). Article I, section 7, provides that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law."² Each of the three consolidated cases in Parker involved the warrantless search of a passenger's belongings in the course of a search incident to the lawful arrest of the vehicle driver. The lead opinion in Parker, when viewed with the concurrences, held that "the arrest of one or more vehicle occupants does not, without more, provide the `authority of law' under article I, section 7 of our state constitution to search other, nonarrested vehicle passengers, including personal belongings clearly associated with such nonarrested individuals." 139 Wash.2d at 502-03,987 P.2d 73 (emphasis added). The court recognized that "under certain circumstances nonarrested individuals may pose a threat to officer safety in an arrest situation." Id. at 501, 987 P.2d 73; see also State v. Kennedy, 107 Wash.2d 1, 11, 726 P.2d 445 (1986) (noting that "[a]n officer conducting an investigative stop may be endangered not only by the suspect but by companions of the suspect as well"). Such circumstances, however, "can be addressed under Mendez or pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)." Parker, 139 Wash.2d at 517,987 P.2d 73 (Talmadge, J., concurring).

In Mendez, we held that a police officer may, incident to stopping a car for a traffic violation, "take whatever steps necessary to control the scene, including ordering the driver to stay...