State of Washington v. Jerome Lionel Pleasant ( 2019 )

FILED
OCTOBER 24, 2019
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 35645-1-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
JEROME LIONEL PLEASANT, )
)
Appellant. )
LAWRENCE-BERREY, C.J. — Jerome Pleasant appeals his convictions for
possession of a controlled substance, cocaine, with intent to deliver, and possession of a
controlled substance, hydrocodone. He argues the trial court erred when it denied his
motions to suppress. We disagree and affirm, but remand to strike certain legal financial
obligations.
FACTS
Detective Jeremy Jones was parked in downtown Pasco in an unmarked patrol car
one evening. Across the street from him was a Conoco gas station. Jones saw a car
parked by the gas pump at the station, and a man in the driver’s seat. He also saw a man
enter the passenger side of the car. The man stayed in the car for 30 seconds and then left
No. 35645-1-III
State v. Pleasant
the gas station on foot. The car then left the pump area and, before entering the road,
failed to stop before crossing the sidewalk. It is an infraction for a driver in a business or
residential district to emerge from an alley, driveway, or building without stopping before
crossing a sidewalk. See RCW 46.61.365.
Jones stopped the car, and asked the driver for identification, proof of insurance,
and registration. The driver produced a card that identified him as Jerome Pleasant. He
did not have proof of insurance or registration. Jones suggested looking in the glove box,
but Pleasant said he was sure the documents were not in the car. Jones ran a license
check and learned that Pleasant’s driver’s license was suspended in the third degree. He
then arrested Pleasant and placed him in the patrol car.
While in the patrol car, Pleasant asked about his possible bail amount. Jones
estimated it would be about $500. Pleasant asked to retrieve the money from the car, but
Jones declined and offered to retrieve it for him. Pleasant said “‘nevermind then.’”
Clerk’s Papers (CP) at 196. Because Pleasant was uncomfortable opening his glove box
and also uncomfortable allowing Jones to retrieve bail money from the car, Jones asked
for police canine assistance. The canine alerted to the presence of narcotics. The car was
towed to the impound lot and sealed, and Jones prepared an application for a search
warrant.
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The following day, Jones obtained and executed the search warrant. He completed
and signed the inventory form. The form showed that he, Detective Nathan Carlisle, and
Sergeant Jason Miller were all present during the search and filling out of the form.1 The
search yielded a large amount of cocaine, prescription pills including hydrocodone,
$5,200, and various drug paraphernalia.
The State charged Pleasant with one count of possession of a controlled substance,
cocaine, with intent to deliver, and one count of possession of a controlled substance,
hydrocodone. Before trial, Pleasant made two motions to suppress the evidence obtained
from his car.
First motion: Pretextual stop
Pleasant first argued that the traffic stop was pretextual. At the first suppression
hearing, Jones described what he saw:
I saw a white vehicle leaving Kim’s Conoco gas station around 18th and
Court. I saw the vehicle leave the—the building driveway area and enter
out on westbound onto Court Street, but the vehicle did not stop for the
sidewalk before entering out into the traffic on Court Street.
1
This form was filed with the clerk’s office a few days after the search and entered
into the Judicial Information System. It is not searchable by people outside the clerk’s
office because it is filed before a case begins and is not associated with the criminal case
number.
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State v. Pleasant
Report of Proceedings (Mar. 21, 2017) (RP) at 6. Jones described the area around the
Conoco station as having many businesses. He also testified he had stopped 39 or more
drivers for this infraction in the past year and, of those stopped, he had cited 13 for the
infraction violation.
On cross-examination, Jones admitted he found the interaction between Pleasant
and the pedestrian who had entered Pleasant’s car suspicious. He also admitted that when
he was about to stop Pleasant’s car, he radioed a second officer to contact the pedestrian.
Jones later testified,
The cause of the stop was the infraction on the sidewalk. The other stuff
I—I saw was just stuff that I saw. It’s—it’s not the—the sole reason or the
major reason for the stop. The major reason for the stop was the—was the
sidewalk.
RP at 23 (emphasis added).
In denying the suppression motion, the trial court found Jones’s testimony credible
and that “the sole reason for the stop was, in fact, the traffic violation.” RP at 44
(emphasis added).
Second motion: CrR 2.3(d)
Pleasant later argued that the incriminating evidence was collected in violation of
CrR 2.3(d), in that only a single officer completed and signed the inventory form.
Detective Carlisle testified at the second suppression hearing. He testified that he, Miller,
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State v. Pleasant
and Jones all participated in the search, and all found items of evidentiary value. He also
testified that he and Miller were present when Jones completed and signed the inventory
form. The trial court determined that CrR 2.3(d) was not violated because multiple
officers were present when executing the search warrant and when Jones completed the
inventory form.
The case proceeded to trial, and a jury found Pleasant guilty on both counts. He
timely appealed to this court.
ANALYSIS2
Pleasant argues the trial court erred in denying his motions to suppress. We
address each motion in the order presented to the trial court and argued on appeal.
A. PRETEXTUAL STOP
Stopping a car is a seizure. State v. Ladson, 138 Wash. 2d 343, 350, 979 P.2d 833
(1999). A warrantless seizure is per se unreasonable under Washington Constitution
article I, section 7 unless the State can prove that one of the narrow exceptions to the
warrant requirement applies. Id. at 349.
2
In his opening brief, Pleasant argued that trial counsel was ineffective for not
moving to suppress on the basis that the traffic stop was pretextual. The State responded
that trial counsel did move to suppress on that basis. The State thereafter agreed that
Pleasant could file a supplemental brief and argue that the trial court erred in denying the
motion. We infer that Pleasant has withdrawn his ineffective assistance of counsel claim.
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“Just as an arrest may not be used as a pretext to search for evidence, a traffic
infraction may not be used as a pretext to stop to investigate for a sufficient reason to
search even further.” Id. at 353. In determining whether the stop was pretextual, we
consider the officer’s subjective motivation in making the stop and the objective
reasonableness of the officer’s conduct. Id. at 358-59. Such an inquiry requires the court
to satisfy itself that the officer, both subjectively and objectively, is motivated by the
proper purpose. Id. at 359 (citing State v. Angelos, 86 Wash. App. 253, 256, 936 P.2d 52
(1997)). Relevant to intent is the officer’s routine practice. State v. Arreola, 176 Wash. 2d
284, 289, 290 P.3d 983 (2012).
Here, substantial evidence does not support the trial court’s finding that the traffic
infraction was the sole reason why Jones stopped Pleasant. On cross-examination, Jones
tacitly admitted that the suspicious activity he witnessed before the infraction played a
role in his decision to stop Pleasant. He tacitly admitted as much when he denied that the
suspicious activity was the sole or major reason for the stop, and testified that “[t]he
major reason for the stop . . . was the sidewalk [infraction].” RP at 23 (emphasis added).
In Arreloa, the court determined the constitutionality of a mixed-motive stop. The
court held, “[a] mixed motive stop does not violate article I, section 7 so long as the
police officer making the stop exercises discretion appropriately.” Arreola, 176 Wash. 2d at
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298. In other words, to pass constitutional muster, the police officer must make “an
independent and conscious determination that a traffic stop to address a suspected traffic
infraction is reasonably necessary in furtherance of traffic safety and the general welfare.”
Id. at 298-99. Nor does it matter that the traffic infraction is the secondary reason for the
stop. Id. at 299. Even officers whose suspicions have been aroused may enforce the
traffic code. State v. Nichols, 161 Wash. 2d 1, 11, 162 P.3d 1122 (2007).
The record supports the stop here. Jones had stopped over 39 cars for the sidewalk
infraction during the past 12 months and had issued 13 citations. There is no evidence
that some or most of these stops were made only after witnessing suspicious activity
unrelated to driving. Jones’s practice of enforcing the sidewalk infraction evidences an
independent and conscious determination that he believed the stop was reasonably
necessary to ensure traffic safety and the general welfare. For these reasons, we conclude
the trial court did not err by denying Pleasant’s first motion to suppress.
B. CrR 2.3(d)
Pleasant contends the trial court erred when it denied his second motion to
suppress evidence. He argues the evidence was collected in violation of CrR 2.3(d). We
disagree.
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Pleasant relies on State v. Linder, 190 Wash. App. 638, 360 P.3d 906 (2015) and the
fact that more than one officer did not sign the inventory form, to warrant reversal and
suppression of the evidence.
CrR 2.3(d) provides in relevant part:
The inventory shall be made in the presence of the person from whose
possession or premises the property is taken, or in the presence of at least
one person other than the officer.
In Linder, the defendant was arrested for driving with a suspended license. Linder,
190 Wash. App. at 641. During the search incident to arrest, the officer found a small tin
box inside the defendant’s pocket. Id. The defendant admitted the box contained drug
paraphernalia. Id. The officer applied for and obtained a search warrant and inventoried
the box, which contained drug paraphernalia. Id. at 641-42. Before trial, the defendant
moved to suppress the evidence, arguing the officer violated CrR 2.3(d) by searching and
inventorying the box without another witness. Id. at 642. The trial court granted the
motion. Id. at 643. On appeal, the court recognized that the officer violated CrR 2.3(d)
and, after a lengthy analysis about whether the violation prejudiced the defendant, the
court affirmed. Id. at 644-52.
Pleasant’s argument is unpersuasive. CrR 2.3(d) does not contain any requirement
that multiple officers sign the inventory form. It merely requires that a person other than
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the officer conducting the inventory witness the execution and inventory of the search
warrant. Here, the trial court found that Jones executed the search warrant and
inventoried the car with Sergeant Miller and Detective Carlisle. Jones’s, Carlisle’s, and
Miller’s badge numbers appeared on the search inventory form as having found items of
evidentiary value. Jones testified that both Miller and Carlisle were present when he
completed the inventory form. The execution of the warrant and subsequent inventory
complied with the requirements of CrR 2.3(d).
Pleasant does not provide any authority for his argument that multiple officers
must sign the inventory form under CrR 2.3(d) besides Linder. But Linder is
distinguishable. In Linder, two officers did not witness the execution and inventory of the
warrant; whereas here, the testimony was clear that three officers were present during the
search and completion of the inventory form. The trial court did not err by denying
Pleasant’s second motion to suppress.
C. DENIAL OF MOTION TO SUPPLEMENT
Pleasant filed a second motion to supplement his brief, contending that the $200
criminal filing fee and the $100 DNA3 fee must be struck from his judgment and sentence
3
Deoxyribonucleic acid.
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based on State v. Ramirez, 191 Wash. 2d 732, 426 P.3d 714 (2018). We grant his motion
and address his contentions.
House Bill 1783, which became effective June 7, 2018, prohibits trial courts from
imposing discretionary LFOs on defendants who are indigent at the time of sentencing.
LAWS OF 2018, ch. 269, § 6(3); Ramirez, 191 Wash. 2d at 745-47. Among the changes was
an amendment to former RCW 36.18.020(2)(h) (2015) to prohibit the imposition of the
$200 criminal filing fee on indigent defendants. LAWS OF 2018, ch. 269, § 17(2)(h). As
held in Ramirez, the changes to the criminal filing fee statute apply prospectively to cases
pending on direct appeal prior to June 7, 2018. Ramirez, 191 Wash. 2d at 738, 747.
Accordingly, the change in law applies to Pleasant’s case. Because Pleasant was indigent
in the trial court and is still indigent on appeal, the $200 criminal filing fee must be struck
pursuant to Ramirez.
The change in law also prohibits imposition of the DNA collection fee when the
State has previously collected the offender’s DNA as a result of a prior conviction. LAWS
OF 2018, ch. 269, § 18. The record establishes that Pleasant has seven prior Washington
State felonies since 2002. Since that time, Washington law has required defendants with
a felony conviction to provide a DNA sample. State v. Catling, 193 Wash. 2d 252, 259, 438
P.3d 1174 (2019); see also RCW 43.43.754; LAWS OF 2002, ch. 289, § 2. Pleasant’s
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seven prior felonies make it virtually certain that the State has previously collected a
DNA sample from him. We, therefore, direct the trial court to strike the DNA collection
fee.
Affirmed but remanded.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Lawrence-Berrey, C.J.
WE CONCUR:
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