Tulalip Tribes v. Johnny, (2006)

• Decision Date: 03 May 2006
• Docket Number: TUL-Cr-DO-2004-0369
• Parties: THE TULALIP TRIBES, PLAINTIFF/APPELLANT, v. MERLE K. JOHNNY, DEFENDANT/CROSS-APPELLANT.
• Court: Tulalip Tribal Court of Appeals

THE TULALIP TRIBES, PLAINTIFF/APPELLANT, v. MERLE K. JOHNNY, DEFENDANT/CROSS-APPELLANT.

No. TUL-Cr-DO-2004-0369

Tulalip Tribal Court of Appeals

May 3, 2006

SYLLABUS BY THE COURT

Trial court suppressed evidence of drug violations seized following a traffic stop for a cracked windshield and certified issue for appeal.Court of Appeals holds that while the initial stop was lawful, the detention of the driver for a period longer than what was necessary to issue a citation for the cracked windshield without a particularized suspicion that another offense was committed rendered the extended detention unlawful, and evidence seized as a result of the unlawful detention must be suppressed.Trial court affirmed.

Before: Jane M. Smith, Chief Justice; Edythe Chenois Justice; Daniel A. Raas, Justice.

OPINION

RAAS J.

The Tulalip Tribe appeals from the suppression of evidence seized from the defendant during a roadside stop.We affirm.

FACTS

This discussion incorporates and relies upon facts found by the trial court.The Tulalip Tribe advanced different facts in its briefing.However, we hold that a party challenging Findings of Fact entered by the trial court must clearly identify the Findings of Fact with which it disagrees and provide specific citations to the record in order properly to present such a challenge.^[1] This the Tulalip Tribe has not done.

DefendantMerle K. Johnny was stopped on the afternoon of August 11 2004, on the Tulalip Reservation by Snohomish County Deputy Sheriff Sanders for driving with a cracked windshield.Deputy Sanders requested and received defendant's Washington drivers license.The defendant volunteered that his license was suspended, he had no insurance and that the car he was driving was not his.Deputy Sanders took his drivers license, returned to his patrol vehicle, verified that the car was registered to a woman and that it was not reported stolen.

The deputy put on latex gloves and returned to defendant's car.He asked the defendant to step from the car, which he did.Mr. Johnny was nervous and fidgety.Deputy Sanders asked defendant to give him permission to search the car, which Mr. Johnny refused.For approximately the next ten minutes, the deputy aggressively asked for permission to search the car, and Mr. Johnny continued to deny such permission.

In one of those fortuitous happenstances that occasionally occur, Tulalip Chief of Police Goss then drove up.After a short conversation with Deputy Sanders, Chief Goss approached Mr. Johnny and asked if the reason that he would not allow a search of the car was that drugs were in the car.Mr. Johnny replied it was, and reached inside and handed Chief Goss a McDonald's Restaurant bag containing scales and at least two baggies of marijuana.Chief Goss arrested Mr. Johnny and charged him with a drug offense.

Deputy Sanders never checked the status of defendant's license, wrote a citation for the cracked windshield, or impounded the car.

The Trial Court suppressed the seized drugs and drug paraphernalia.The Tulalip Tribe appealed.

DISCUSSION

The activity at the side of the road has two distinct phases.The first begins with the observation of the cracked windshield and continues through the initial questioning of the defendant regarding his license and the ownership of the car through Deputy Sanders' return to the patrol car, and ends with the check on the status of the vehicle Mr. Johnny was driving.The second begins when Deputy Sanders dons the latex gloves and ends with the defendant's arrest by Chief Goss.Putting on the gloves is a sign that the deputy had decided to search the car.To conduct such a search requires probable cause.We conclude that the decision to search the car was without probable cause, and that therefore the fruits of the search must be suppressed.

The initial stop was valid.Driving with an obstructed windshield is an infraction under Tulalip law.Tulalip Tribal Ordinance 49, Section 3.3.1 incorporates RCW 46.37, which, in RCW 46.37.410(2), prohibits driving a motor vehicle with any nontransparent material on the front windshield.A cracked windshield is an infraction under Tulalip law, and stopping the offending vehicle and its driver is appropriate.

So was the initial investigation of the infraction, where Deputy Sanders sought information regarding Mr. Johnny's license status, car ownership, and insurance status.The difficulty with the stop arises when Deputy Sanders determined that a search of the car was needed.

Tulalip Tribal Code, Ordinance 49, §2.2.5, requires that a search may be made, and contraband seized when a search is made, either with a search warrant or...