State v. Nichols

• Decision Date: 19 July 2007
• Docket Number: No. 78497-3.,78497-3.
• Citation: 162 P.3d 1122,161 Wn.2d 1
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Caleb George NICHOLS, Petitioner.

162 P.3d 1122

161 Wn.2d 1

STATE of Washington, Respondent, v. Caleb George NICHOLS, Petitioner.

No. 78497-3.

Supreme Court of Washington, En Banc.

Argued March 15, 2007.

Decided July 19, 2007.

Carol A. Elewski, Tumwater, WA, for Petitioner.

Kevin Michael Korsmo, Andrew J. Metts III, Spokane County Prosecutor's Office, Spokane, WA, for Respondent.

MADSEN, J.

¶ 1 Petitioner Caleb George Nichols was convicted of possession of methamphetamine. He maintains that his trial counsel was ineffective for failing to move to suppress evidence obtained following a stop of the vehicle in which he was a passenger. Nichols argues that the stop was pretextual and thus negates his subsequent consent to the search of his person that resulted in discovery of methamphetamine hidden in his sock. The Court of Appeals affirmed his conviction. We affirm the Court of Appeals.

FACTS

¶ 2 The parties stipulated to the facts set out in police reports describing the events occurring just after midnight on November 17, 2003. Deputy Sheriff Shawn Hause was parked in a parking lot at about Francis Avenue and Haven Street in North Spokane when he saw a vehicle going westbound on Francis Avenue from Market Street. He saw the vehicle pull into another parking lot, drive slowly around the lot, and exit the same way it entered, back onto Francis Avenue. He wrote in his report:

As it exited the parking lot, it crossed a double yellow line and pulled immediately into the far right lane in the EB [eastbound] lane. It appeared to me that the vehicle (driver) was trying to avoid driving in front of me.

I pulled out and the vehicle turned SB [southbound] on Market. I caught up to the vehicle and activated my lights north of Central.

Clerk's Papers (CP) at 11. The vehicle did not immediately stop, but instead drove slowly another couple of blocks and then turned left onto Joseph and pulled into a car wash parking lot.¹ As Deputy Hause followed the vehicle, he saw a large "For Sale" sign in the back window that blocked his view of the driver. CP at 11. While the vehicle was slowly traveling southbound, the driver started waving his hand in the rear window. Hause said it appeared the driver was delaying the stop.

¶ 3 Once the vehicle stopped, Deputy Hause approached the driver's side and asked for the driver's license and paperwork for the vehicle. The driver, who was identified as Jacob Potter, told Hause that he did not have a license and was "`Driving on a suspended license.'" CP at 12. Hause confirmed with dispatch that Potter's license was suspended and also learned that Potter was "on active DOC [Department of Corrections] status" as a result of a felony conviction for a violent offense. Id. Hause had Potter leave the vehicle, handcuffed him near its left rear tire, and searched him. Hause called for backup, in part because of Potter's violent offense history.

¶ 4 In the meantime, Hause had identified the passenger in the vehicle as Nichols. Nichols was not wearing a seat belt. After Deputies Brett Hubbell and Daniel Dutton arrived as backup, Hause had Nichols step out of the car. Dutton then took Nichols to the backup patrol car while Hause searched the vehicle incident to Potter's arrest. The search of Potter and that of the vehicle did not yield any drugs, weapons, or contraband. Hubbell conducted a pat down search of Nichols for weapons.

¶ 5 Hause reported that Nichols appeared intoxicated or under the influence but did not smell of intoxicants. Hause asked Nichols if he had been using drugs and Nichols responded, "No." CP at 12. After searching the vehicle, Hause walked around the rear of it and noticed a plastic bindle that looked like part of a baggie on the ground near where he had handcuffed Potter. The bindle contained a substance that subsequently field-tested positive for methamphetamine. Hause asked Nichols if the bindle was his, and Nichols said, "No way." CP at 13. Dutton said that he had been watching Nichols and Nichols had not thrown or tossed anything. Hause believed that the baggie had come from Potter.

¶ 6 Hause again asked Nichols if he had been using drugs and Nichols said, "No." CP at 13. Hause asked Nichols if he minded if Hause searched him for drugs. Nichols replied that he had already been searched. Hause explained that search had been a pat down for weapons only. Hause asked Nichols again if he could search him. Nichol said, "Sure—I don't mind." CP at 13. Hause searched Nichols and found a baggie in his sock that contained material that also field tested positive for methamphetamine. Nichols said, "That's not mine," and explained that about the time Hause activated his lights Potter had given it to him and told him to get rid of it. CP at 14. Hause read both Potter and Nichols their Miranda² rights and arrested them for possession of a controlled substance.

¶ 7 Nichols moved to suppress the evidence of the drugs, arguing that he was merely a passenger who was not suspected of any criminal activity and that he should have been detained only so long as it took to cite him for the seat belt violation. Because he was unlawfully detained, he contended, his consent to search was invalid. The parties agreed to the facts as stated in the police reports for purposes of the suppression motion. The court denied the motion, finding, among other things, that the stop was valid because the vehicle improperly crossed a double yellow line and made an improper lane change. The court also concluded that an infraction resulted because the vehicle failed to drive as nearly as practicable within a single lane.³

¶ 8 A bench trial followed on stipulated facts—those in the police and lab reports— and Nichols was convicted of possession of a controlled substance. He appealed, arguing that his counsel was ineffective because she conceded the legality of the traffic stop.⁴ He maintained the stop was invalid because no traffic infractions were committed, and alternatively, if infractions did occur, the stop was nevertheless a pretextual stop predicated on Deputy Hause's belief that the driver was trying to avoid driving in front of him.

¶ 9 The Court of Appeals determined that the infractions found by the trial court are prohibited under RCW 46.61.130(2), RCW 46.61.140(1) and RCW 46.61.305(2) and that Nichols presented plausible arguments that either these statutes were not violated or they did not apply. However, the court concluded that Nichols failed to show that counsel's performance fell below an objective standard of reasonableness. The Court of Appeals did not address Nichols' claim that the stop was a pretext. State v. Nichols, noted at 131 Wash.App. 1047, 2006 WL 417329, at *3, 2006 Wash.App. LEXIS 244, at *7 (Wash.Ct.App. Feb. 23, 2006).

ANALYSIS

¶ 10 Nichols maintains that counsel was ineffective in failing to move to suppress the evidence of the drugs on the ground that the stop was invalid. In order to establish that counsel was ineffective, a defendant must show that counsel's conduct was deficient and that the deficient performance resulted in prejudice. State v. Brockob, 159 Wash.2d 311, 344-45, 150 P.3d 59 (2006); State v. Reichenbach, 153 Wash.2d 126, 130, 101 P.3d 80 (2004); State v. McFarland, 127 Wash.2d 322, 334-35, 899 P.2d 1251 (1995); State v. Thomas, 109 Wash.2d 222, 225-26, 743 P.2d 816 (1987) (adopting test in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). To show deficient representation, the defendant must show that it fell below an objective standard of reasonableness based on all the circumstances. McFarland, 127 Wash.2d at 334-35, 899 P.2d 1251. The defendant must overcome a strong presumption that counsel's performance was not deficient. Reichenbach, 153 Wash.2d at 130, 101 P.3d 80. In assessing performance, "the court must make every effort to eliminate the distorting effects of hindsight." In re Pers. Restraint of Rice, 118 Wash.2d 876, 888, 828 P.2d 1086 (1992). Prejudice is established if the defendant shows that there is a reasonable probability that, but for counsel's unprofessional errors, the outcome of the proceeding would have been different. Reichenbach, 153 Wash.2d at 130, 101 P.3d 80.

¶ 11 Here, the claimed deficiency is that counsel failed to move to suppress evidence obtained during a pretextual stop. A pretextual stop occurs when an officer stops a vehicle in order to conduct a speculative criminal investigation unrelated to the driving, and not for the purpose of enforcing the traffic code. State v. Ladson, 138 Wash.2d 343, 349, 351, 979 P.2d 833 (1999). "`Pretext is, by definition, a false reason used to disguise a real motive.'" Id. at 359 n. 11, 979 P.2d 833 (quoting Patricia Leary & Stephanie Rae Williams, Toward a State Constitutional Check on Police Discretion to Patrol the Fourth Amendment's Outer Frontier: A Subjective Test for Pretextual Seizures, 69 TEMP. L.REV. 1007, 1038 (1996)). The reasonable articulable suspicion that a traffic infraction has occurred, which justifies an ordinary warrantless traffic stop, does not justify a stop for criminal investigation. Ladson, 138 Wash.2d at 349, 979 P.2d 833. Thus, a warrantless traffic stop based on mere pretext violates article I, section 7 of the Washington Constitution because it does not fall within any exception to the warrant requirement and therefore lacks the authority of law required for an intrusion into a citizen's privacy interest. Id. at 358, 979 P.2d 833.

¶ 12 To determine whether a stop is pretextual, the totality of the circumstances must be considered, including the subjective intent of the officer and the objective reasonableness of the officer's behavior. Id. at 358-59, 979 P.2d 833. If the court finds the stop is pretextual, all subsequently obtained evidence flowing from the stop must be suppressed as derivative of the unconstitutional seizure. Id. at 359, 979 P.2d 833 (citing State v. Kennedy, 107 Wash.2d 1, 4, 726 P.2d 445 (1986)).

¶ 13 Initially, Nichols'...