State v. Pulfrey
| Decision Date | 19 May 2005 |
| Docket Number | No. 75301-6.,75301-6. |
| Citation | 111 P.3d 1162,154 Wash.2d 517,154 Wn.2d 517 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Respondent, v. Van R. PULFREY, Petitioner. |
Maureen Marie Cyr, Washington Appellate Project, Seattle, for Petitioner.
Andrea Ruth Vitalich, King County Prosecutor's Office, Seattle, for Respondent.
¶ 1 We review a partially published Court of Appeals opinion affirming Van Pulfrey's conviction for possession of methamphetamine. He argues the arresting officer failed to exercise statutorily granted discretion, choosing to arrest rather than cite and release. Pulfrey claims this failure to exercise discretion violates article I, section 7 of the Washington Constitution. Further, Pulfrey argues under City of Redmond v. Moore1 his arrest for driving with suspended license was invalid because the relevant statute violates due process. Thus, claims Pulfrey, the methamphetamine found in a search incident to this allegedly unlawful arrest should be suppressed.
¶ 2 We hold a police officer may arrest a person for a misdemeanor committed in his presence when the officer has probable cause to do so, even if the officer later releases the person. A police officer may exercise his statutorily granted discretion after arresting the person. Further, we do not consider Pulfrey's Moore claim since he has not shown he is entitled to relief under that decision. Therefore, we affirm.
¶ 3 On August 24, 2000, Deputy George Alvarez stopped Van Pulfrey for a defective left taillight. Alvarez checked Pulfrey's driver's license with Department of Licensing records via the dispatcher and discovered it was suspended. Alvarez then arrested Pulfrey for the misdemeanor offense of driving while license is suspended in the third degree. After placing Pulfrey in the rear seat of his patrol car, Alvarez searched Pulfrey's car and found two bags of methamphetamine under the driver's seat. Alvarez released the car to a friend of Pulfrey's.
¶ 4 Pulfrey was charged with possession of methamphetamine. Defense counsel moved to suppress the methamphetamine, arguing the traffic stop was pretextual. Judge Ronald Kessler denied the motion, whereupon Pulfrey waived his right to a jury trial. He also stipulated to facts for the bench trial. The court found Pulfrey guilty of possessing methamphetamine.
¶ 5 During the hearing for the pretrial motion to suppress, Alvarez testified during cross-examination he arrests persons for driving with suspended licenses:
Report of Proceedings (RP) (Mar. 14, 2001) at 19. Alvarez later testified during the same cross-examination:
Id. at 28. These passages from the record are significant to Pulfrey's claim that Alvarez did not exercise discretion and therefore acted arbitrarily.
¶ 6 The trial court was also concerned Alvarez did not exercise discretion but ruled that he had the authority to arrest Pulfrey. The court held that since Alvarez properly arrested Pulfrey, the search incident to the arrest was also valid. The court denied the motion to suppress, reasoning that an officer could arrest the suspect for a misdemeanor and then search the car before determining whether to cite and release the suspect.
¶ 7 On appeal, Pulfrey argued that Alvarez failed to exercise discretion in violation of RCW 46.64.015 and Criminal Rule for Courts of Limited Jurisdiction (CrRLJ) 2.1(b) by always arresting suspects for driving with a suspended license. Pulfrey did not argue in the Court of Appeals that the arrest violated the state constitution; that argument is raised for the first time here.
¶ 8 The Court of Appeals rejected Pulfrey's argument, concluding that Alvarez had authority to make the arrest based on probable cause. State v. Pulfrey, 120 Wash.App. 270, 283, 86 P.3d 790 (2004). The court declined to require that police exercise their statutorily granted discretion on a case-by-case basis to determine "whether custodial arrest is justified on some additional basis than probable cause." Id.
¶ 9 Pulfrey petitioned this court, again raising the abuse of discretion issue but now framing it in constitutional language. He also raises an issue under our recently decided opinion in City of Redmond v. Moore, 151 Wash.2d 664, 91 P.3d 875 (2004), in which we struck down as unconstitutional the statutes requiring mandatory license suspension without a hearing. We granted review on November 3, 2004.
¶ 10 Interpretation of a statute is a question of law reviewed de novo. In re Impoundment of Chevrolet Truck, Wash. License No. A00125A, 148 Wash.2d 145, 154, 60 P.3d 53 (2002). Interpretation of the constitution is also a question of law reviewed de novo. City of Redmond v. Moore, 151 Wash.2d at 668, 91 P.3d 875.
¶ 11 Under the fourth amendment to the United States Constitution and article I, section 7 of the Washington Constitution, an arrest must be lawful to justify a search incident to it. Michigan v. DeFillippo, 443 U.S. 31, 35, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979) (); State v. O'Neill, 148 Wash.2d 564, 585, 62 P.3d 489 (2003) (). State law is the starting point for determining the lawfulness of the arrest. DeFillippo, 443 U.S. at 36,99 S.Ct. 2627.
¶ 12 Pulfrey argues that his arrest was unlawful under state statutes, case law and public policy, and article I, section 7. The relevant statutes are RCW 10.31.100(3)(e)2 and RCW 46.64.015(2),3 the former unequivocally granting police officers the authority to arrest for driving while license is suspended, and the latter granting them discretion to cite and release for misdemeanor offenses (driving while license suspended in the third degree is a misdemeanor, see RCW 46.20.342(1)(c)). CrRLJ 2.1(b)(2) lists factors for the officer to consider when exercising the discretion to arrest or to cite and release.4 Pulfrey argues a police officer must exercise this statutorily granted discretion before deciding to arrest.
¶ 13 Pulfrey cites In re Impoundment of Chevrolet Truck to support his claim police officers must exercise statutorily granted discretion. In Chevrolet Truck we struck down a WAC mandating impoundment of all vehicles driven by suspended drivers because it exceeded the legislative grant of authority, which had given the officers the discretion to impound. 148 Wash.2d at 159, 60 P.3d 53. In a footnote we rejected the argument that the impoundment was reasonable:
The court also found in the alternative if the constitution requires discretion be exercised by the officer at the scene, this impoundment was nevertheless reasonable. We reject this reasoning on grounds of logic. Since WAC 204-96-010 divests officers of all discretion on whether to impound a particular vehicle, the officer who impounded All Around's van cannot have reasonably exercised discretion he did not have.
Id. at 150 n. 2, 60 P.3d 53. We struck down that WAC because it was beyond the agency's statutory grant of authority. ¶ 14 Pulfrey also cites two cases involving prosecutorial discretion. In State v. Pettitt, 93 Wash.2d 288, 609 P.2d 1364 (1980), we held prosecutors must exercise their discretion: "In our view, this fixed formula which requires a particular action in every case upon the happening of a specific series of events constitutes an abuse of the discretionary power lodged in the prosecuting attorney." Id. at 296, 609 P.2d 1364. In State v. WS, 40 Wash.App. 835, 700 P.2d 1192 (1985), the Court of Appeals struck down the practice of the prosecuting attorney to send all prostitution cases to the diversionary unit with a rejection form attached, all of which cases were rejected solely because they involved prostitution. The court stated: "This is not to say that all prostitutes must be accepted by a diversionary unit or even that WS must necessarily be accepted by the diversionary unit but, rather, that a denial based on the crime itself is arbitrary when it is clear that the Legislature intended such crimes as appropriate for diversion." Id. at 838, 700 P.2d 1192.
¶ 15 These cases present the best support for Pulfrey's claim that discretion must be exercised when granted by the legislature.5 The State does not directly dispute that point but argues the timing of the discretion is critical. Even assuming that police officers must exercise their discretion when deciding to arrest or to cite and release, the question remains of when that decision must be made. Pulfrey assumes discretion must be exercised before a person is arrested. The State argues the plain language of the applicable statutes and court rules allow an officer to arrest the person and then decide to cite and release. This argument is persuasive.
¶ 16 RCW 46.64.015 plainly allows a police officer to cite and release an arre...
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