State v. McLean

• Decision Date: 22 October 2013
• Docket Number: No. 43522–5–II.,43522–5–II.
• Parties: STATE of Washington, Appellant, v. Charles Wayne McLEAN, Respondent.
• Court: Washington Court of Appeals

313 P.3d 1181

STATE of Washington, Appellant,

v.Charles Wayne McLEAN, Respondent.

No. 43522–5–II.

Court of Appeals of Washington,

Division 2.

Oct. 22, 2013.

Anne Mowry Cruser, Clark County Prosecuting Attorney, Vancouver, WA, for Petitioner.

John A. Hays, Attorney at Law, Longview, WA, for Respondent.

WORSWICK, C.J.

¶ 4 The State appeals the superior court's order vacating Charles McLean's district court conviction for driving under the influence of alcohol. The State argues that the superior court erred by ruling that (1) the traffic stop was pretextual and therefore unconstitutional and (2) McLean received ineffective assistance of counsel because his trial counsel failed to object to improper opinion testimony. We agree with the State, reverse the superior court's vacation of McLean's conviction, and reinstate McLean's conviction.

FACTS

¶ 5 Shortly after midnight on August 18, 2010, Trooper Richard Thompson of the Washington State Patrol was traveling westbound on State Route 500 in Clark County. Ahead of Trooper Thompson was a car driven by Charles McLean; no other vehicles were present.

¶ 6 Trooper Thompson had training and experience in identifying impaired drivers. Through this training and experience, he knew that (1) alcohol causes, delayed reactions that can result in a driver's drifting through the lane of travel and (2) alcohol impairs a person's ability to simultaneously perform multiple tasks such as maintaining the speed limit, staying within a lane, and using turn signals. Trooper Thompson estimated that in 2010 he stopped about 400 drivers for lane travel violations and he made over 200 arrests for driving under the influence.

¶ 7 McLean's car caught Trooper Thompson's attention because it was weaving from side to side within the left lane. Even though McLean was driving the speed limit, McLean's weaving made Trooper Thompson suspect that McLean might have been impaired. Trooper Thompson followed McLean's car and saw it cross the fog line ¹ three times. Trooper Thompson then activated his lights and initiated a traffic stop.

¶ 8 Once McLean pulled over, Trooper Thompson approached and advised that he stopped McLean for driving in the left lane without passing, weaving through the lane, and discarding a lit cigarette after Trooper Thompson activated his emergency lights. Trooper Thompson “immediately smelled an odor of intoxicants coming from the vehicle.” Clerk's Papers (CP) at 116.

¶ 9 After administering field sobriety tests, Trooper Thompson arrested McLean for driving under the influence of alcohol. McLean refused to provide a breath sample to measure his blood alcohol content. The State charged McLean with three counts: violating ignition interlock requirements, third degree driving while his license was suspended, and driving under the influence of intoxicants.

¶ 10 McLean filed a motion to suppress evidence obtained from the traffic stop, arguing that Trooper Thompson did not have a reasonable suspicion that McLean was driving under the influence. The district court held a hearing and denied McLean's motion in an oral ruling. McLean then pleaded guilty to violating ignition interlock requirements and driving while his license was suspended, but he proceeded to trial on the driving under the influence charge.

¶ 11 During a jury trial, the State elicited testimony about Trooper Thompson's training and experience in identifying impaired drivers. The State asked Trooper Thompson why he stops some drivers on suspicion of driving under the influence without ultimately arresting them. Trooper Thompson replied that he arrests drivers for driving under the influence only if he believes they are impaired by alcohol or drugs. McLean's counsel did not object to this testimony.

¶ 12 Later, while testifying about the incident involving McLean, Trooper Thompson stated that he arrested McLean for driving under the influence. Again, McLean's counsel did not object. The jury found McLean guilty of driving under the influence and, in a special verdict, found that he refused a lawful request to test his blood or breath.

¶ 13 McLean appealed to the superior court, arguing that (1) the district court erred by denying his motion to suppress because the traffic stop was pretextual and (2) he received ineffective assistance of counsel when his attorney failed to object to Trooper Thompson's testimony. The superior court agreed and remanded for dismissal with prejudice. The State then sought discretionary review in this court, which our commissioner granted. Ruling Granting Review, State v. McLean, No. 43522–5–II (Wash.Ct.App. July 30, 2012).

DISCUSSION

I. Denial of McLean's Motion to Suppress

¶ 14 The State first argues that the superior court erred because the district court correctly denied McLean's motion to suppress evidence from the traffic stop. McLean argues (1) that, as a threshold matter, we cannot effectively review the superior court's reversal because the district court failed to enter written findings and conclusions on the motion to suppress and (2) that the traffic stop was pretextual and therefore unconstitutional. We agree with the State.'

¶ 15 RALJ 9.1 governs review of the district court's decision, whether by us or by the superior court. State v. Ford, 110 Wash.2d 827, 829–30, 755 P.2d 806 (1988). In reviewing the district court's decision on a motion to suppress, we review factual determinations for substantial evidence and conclusions of law de novo. RALJ 9.1(a), (b); State v. Garvin, 166 Wash.2d 242, 249, 207 P.3d 1266 (2009). Because neither party has challenged the district court's factual determinations, they are verities on appeal. City of Seattle v. May, 151 Wash.App. 694, 697, 213 P.3d 945 (2009), aff'd,171 Wash.2d 847, 256 P.3d 1161 (2011). Accordingly, our review is limited to a de novo determination of whether the district court properly derived conclusions of law from its factual findings. State v. Armenta, 134 Wash.2d 1, 9, 948 P.2d 1280 (1997).

A. This Case Is Reviewable

¶ 16 As a threshold matter, McLean argues that we cannot effectively review the district court's decision because it failed to enter written findings of fact and conclusions of law following the hearing on McLean's CrRLJ 3.6 motion to suppress. This argument lacks merit.

¶ 17 CrRLJ 3.6(b) requires the district court to “ state findings of fact and conclusions of law” supporting its ruling on a motion to suppress evidence. (Emphasis added.) But CrRLJ 3.6 does not require the district court's findings and conclusions to be in writing. State v. Osman, 147 Wash.App. 867, 881 n. 8, 197 P.3d 1198 (2008), rev'd on other grounds,168 Wash.2d 632, 229 P.3d 729 (2010); State v. Anderson, 51 Wash.App. 775, 778 n. 1, 755 P.2d 191 (1988).² Accordingly, the absence of written findings and conclusions does not preclude our review of the district court's denial of a motion to suppress. Anderson, 51 Wash.App. at 778 n. 1, 755 P.2d 191.

¶ 18 McLean further claims that the district court's oral decision failed to address his argument that the traffic stop was pretextual. We disagree because the district court properly declined to reach the issue of pretext. The district court concluded that Trooper Thompson stopped McLean on the basis of a reasonable suspicion that McLean was driving under the influence of alcohol. Thus, for Trooper Thompson to conduct a traffic stop to investigate McLean for driving under the influence, “the use of pretext would be unnecessary.” State v. Ladson, 138 Wash.2d 343, 353, 979 P.2d 833 (1999). McLean's threshold arguments fail.

B. The Traffic Stop Was Lawful

¶ 19 The State argues that Trooper Thompson conducted a lawful traffic stop based on a reasonable suspicion that McLean was driving under the influence. McLean argues that the traffic stop was unconstitutional because it was pretextual. We agree with the State.

¶ 20 Both the Fourth Amendment and article I, section 7 of the Washington Constitution prohibit unreasonable seizures. State v. Kennedy, 107 Wash.2d 1, 4, 726 P.2d 445 (1986). A traffic stop is a seizure. Kennedy, 107 Wash.2d at 4, 726 P.2d 445. Warrantless seizures are per se unreasonable, unless an exception to the warrant requirement applies. Ladson, 138 Wash.2d at 349, 979 P.2d 833. The State bears the burden of establishing an exception to the warrant requirement. Ladson, 138 Wash.2d at 350, 979 P.2d 833.

¶ 21 One exception is an investigative stop, including a traffic stop, that is based on a police officer's reasonable suspicion of either criminal activity or a traffic infraction. State v. Arreola, 176 Wash.2d 284, 292–93, 290 P.3d 983 (2012); see Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A reasonable suspicion exists when specific, articulable facts and rational inferences from those facts establish a substantial possibility that criminal activity or a traffic infraction has occurred or is about to occur. State v. Snapp, 174 Wash.2d 177, 197–98, 275 P.3d 289 (2012).

¶ 22 When reviewing the lawfulness of an investigative stop, we evaluate the totality of the circumstances presented to the police officer. State v. Doughty, 170 Wash.2d 57, 62, 239 P.3d 573 (2010). Those circumstances may include the police officer's training and experience. State v. Glover, 116 Wash.2d 509, 514, 806 P.2d 760 (1991).

¶ 23 Here, the traffic stop was lawful because Trooper Thompson had a reasonable suspicion that McLean was driving under the influence. Trooper Thompson observed McLean's vehicle weave within its lane and cross onto the fog line three times. From the articulable fact of this observation, and from his training and experience identifying driving under the influence, it was rational for Trooper Thompson to infer that there was a substantial possibility that McLean was driving under the influence. That substantial possibility establishes a reasonable suspicion permitting Trooper Thompson to make a warrantless traffic stop. See Arreola, 176 Wash.2d at...