State v. Reisman, 42888-1-II
| Decision Date | 11 December 2012 |
| Docket Number | No. 42888-1-II,42888-1-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. JOSHUA WILLIAM REISMAN, Appellant. |
Johanson, A.C.J. — Joshua Reisman appeals his convictions for possession of a controlled substance. He argues that the trial court erred in denying his motion to suppress because the state trooper who detained Reisman for committing an infraction impermissibly extended the detention when he questioned Reisman about drug possession. We agree and reverse.1
On May 26, 2011 at 1:00 p.m., Washington State Trooper Nathan Hovinghoff observed Joshua Reisman walking on the shoulder of SR 12 at milepost 110. Trooper Hovinghoff was driving westbound on SR 12 and Reisman was walking eastbound on the right-hand side of the road with his back to traffic. The highway does not have a sidewalk.
State law prohibits walking with the flow of traffic. In addition, the trooper recognizedthat Reisman was unsafe walking without being able to see oncoming vehicles. He decided to "stop and talk to [Reisman] about walking wrong on the highway." Report of Proceedings (RP) at 16.2 See also RCW 46.61.250 ("Pedestrians on Roadways").
Trooper Hovinghoff activated his emergency lights. He turned and parked behind Reisman and exited his car. He met Reisman near the front of the vehicle and asked him for identification.
Reisman stated that he did not have any identification. He identified himself as Joshua Reisman and provided his date of birth. Trooper Hovinghoff informed Reisman "the reason I stopped [you] was because [you were] walking with [your] back to traffic and [you] need[] to walk facing traffic." RP at 9.
The trooper observed that Reisman had constricted pupils and that he "spoke with kind of a very mush mouth . . . like his mouth and tongue were swollen." RP at 9-10. He was also "very slow in his movements, along with his thought process." RP at 10. Trooper Hovinghoff, however, did not believe that Reisman's condition made it unsafe for Reisman to walk on the highway shoulder.
Trooper Hovinghoff is a trained drug recognition expert (DRE). He received 40 hours of training on observing impaired persons and diagnosing "the drugs that they are under, with a certain amount of accuracy." RP at 6. He believed that Reisman's condition was consistent with being under the influence of a "narcotic analgesic." RP at 10. He knew from his experience thatpeople under the influence of these medications were often in possession of the drug.
Trooper Hovinghoff, therefore, asked Reisman if he had any drugs on him. He testified that he asked Reisman about drugs because he had a "reasonable suspicion" "[t]hat there's possibly some narcotic analgesics or drugs on his person." RP at 18.3 Reisman replied that he had a prescription and removed a pill bottle from a pocket.
Trooper Hovinghoff asked to see the bottle and Reisman passed it to him. The trooper testified that he asked to see the bottle for "a couple of reasons." RP at 11. He set out first that he wanted to see if the name on the bottle matched the name provided by Reisman because Reisman lacked identification. He did not actually testify as to his other reasons for wanting to see the bottle.
Reisman passed the bottle to Trooper Hovinghoff. The bottle had Joshua Reisman's name on it and it was a prescription for Tramadol. While the trooper was looking at the label, he saw at least two "different colored pills through the side." RP at 11. He opened the bottle to confirm that it contained pills in addition to those prescribed. Trooper Hovinghoff asked Reisman if all of the medication was his. Reisman stated that all he was prescribed was Tramadol. The trooper placed Reisman under arrest.
At a CrR 3.6 hearing, the State conceded that Trooper Hovinghoff seized Reisman when he activated his emergency lights and asked Reisman for identification. Analogizing the situation to a DUI stop, it argued that the trooper engaged in a legitimate inquiry about drugs when he noticed Reisman appeared to be under the influence. It added that Reisman voluntarily producedthe pill bottle and that the trooper asked to see the bottle to confirm Reisman's identity. According to the State, Trooper Hovinghoff legally observed the multiple pills and then had probable cause to open the bottle.
Reisman countered that that situation was unlike a DUI stop because "it's not illegal to have a prescription for a narcotic nor it is it illegal to walk along the road under the influence of a narcotic." RP at 28. Reisman took the position that the seizure became illegal once Trooper Hovinghoff asked Reisman whether he possessed drugs because there was no evidence Reisman was committing a crime. Thus, the trooper had no legal reason to "extend[] the contact beyond the initial education about the side of the road situation." RP at 29.
The superior court denied the motion to suppress. It recognized that Trooper Hovinghoff had a legitimate reason to seize Reisman when he saw him walking on the wrong side of the road. With respect to the trooper's inquiry about drug possession, the court concluded that the inquiry "was reasonable given [Trooper] Hovinhoff's [sic] observations of the defendant along with his training and experience as a" DRE. CP at 23.4 Reisman then "whips the pill bottle out and says, here it is." RP at 34. The superior court concluded that Reisman was never compelled to produce the pill bottle or forced to give it to the trooper. Finally, the court ruled that Trooper Hovinghoff had probable cause to suspect Reisman unlawfully possessed prescription drugs when he saw the different pills while reading the label.
After a bench trial, the superior court convicted Reisman of two counts of possession of a controlled substance. It sentenced him to 18 months in custody and entered a stay of enforcementof the sentence pending appeal. Reisman appeals.
On appeal, Reisman argues that Trooper Hovinghoff impermissibly exceeded the limited scope of a stop and brief seizure for a minor civil infraction when he engaged in a "fishing expedition" regarding narcotics. Br. of Appellant at 9. The State responds that the "purpose of investigating a traffic infraction became a classic Terry detention due to [Trooper] Hovinghoff's observation of Reisman's obvious physical condition." Br. of Resp't at 6.
Warrantless searches and seizures are unconstitutional unless they fall within one of the narrowly drawn exceptions to the warrant requirement. State v. Schlieker, 115 Wn. App. 264, 269-70, 62 P.3d 520 (2003); see also State v. Ladson, 138 Wn.2d 343, 349, 979 P.2d 833 (1999). The State bears the burden of demonstrating that a warrantless search or seizure falls within an exception to the warrant requirement by clear and convincing evidence. State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009).
When reviewing the denial of a suppression motion, we determine whether substantial evidence supports the findings of fact and whether the findings support the conclusions of law. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). We give great deference to a trial court's resolution of differing accounts of the circumstances surrounding the encounter set forth in its factual findings. Hill, 123 Wn.2d at 646. When challenged, we review findings entered in a CrR 3.6 suppression for substantial evidence. Hill, 123 Wn.2d at 644. "Evidence is substantial when it is sufficient to persuade a fair-minded person of the truth of the stated premise." State v. Reid, 98 Wn. App. 152, 156, 988 P.2d 1038 (1999).
Both parties agree that Trooper Hovinghoff seized Reisman when he stopped him for walking with the flow of traffic, an infraction. The trial court also so concluded. When an officer stops an individual for committing a civil traffic infraction, an officer may detain the individual:
for a reasonable period of time necessary to identify the person, check for outstanding warrants, check the status of the person's license, insurance identification card, and the vehicle's registration, and complete and issue a notice of traffic infraction.
RCW 46.61.021(2); see also RCW 46.64.015 (). "[T]he detention length and scope must be reasonably related to the circumstances justifying the stop." State v. Veltri, 136 Wn. App. 818, 822, 150 P.3d 1178 (2007). And, once the initial purpose of the traffic stop is completed, any additional detention must be based on "'articulable facts giving rise to a reasonable suspicion of criminal activity.'" State v. Armenta, 134 Wn.2d 1, 15-16, 948 P.2d 1280 (1997) (quoting State v. Cantrell, 70 Wn. App. 340, 344, 853 P.2d 479 (1993), aff'd in part, 124 Wn.2d 183, 875 P.3d 1208 (1994)).
In this case, Trooper Hovinghoff originally detained Reisman to speak with him about the infraction of "walking wrong on the highway." RP at 16. At the point in time that the trooper asked Reisman about narcotics possession, however, he had already fulfilled the purpose of the infraction detention.
Trooper Hovinghoff stopped Reisman, informed him of the law against walking with traffic, and asked him to comply with the law. There is no indication that he was actually going to issue a citation to Reisman. Veltri, 136 Wn. App. at 822-23 (). Trooper Hovinghoff, in fact, testified that he rarely cites individuals for this infraction (testimony that he issued three citations in three years but stopped people to warn them "[m]ultiple, multiple, multiple times."). RP at 15-16. The trooper did not testify that he doubted the accuracy of the oral identification information initially provided by Reisman.5 see generally State v. Terrazas, 71 Wn. App. 873...
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