State Of Washington, Respondent/cr-appellant v. Brian David Martin, Appellant/cr-respondent ( 2019 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 77547-2-I
Respondent,
v. DIVISION ONE
BRIAN DAVID MARTIN, UNPUBLISHED OPINION
Appellant. FILED: April 29, 2019
LEACH, J. — Brian Martin appeals his convictions for possession of a
controlled substance (Alprazolam) and driving under the influence (DUI). He
challenges the trial court’s denial of his motion to suppress evidence, claiming
that the arresting officer lacked probable cause to arrest him. Because
substantial evidence supports the trial court’s challenged findings of fact showing
probable cause, Martin does not show error. We affirm.
BACKGROUND
Procedural Facts
Following a vehicle accident, the State charged Martin with possession of
a controlled substance, DUI (drugs), and bail jumping. Martin asked the trial
court to suppress evidence obtained after his arrest. Martin claimed that the
arresting officer did not have probable cause to arrest him. The trial court denied
No. 77547-2-I I 2
Martin’s request and concluded, based on its 25 factual findings, that the totality
of the circumstances provided probable cause to arrest Martin for DUI. After a
five-day trial, the jury found Martin guilty as charged. Martin appeals.
Substantive Facts
Witness Merle Humphreys testified at trial that on November 15, 2014,
between 9:00 and 10:00 p.m., he was driving southbound on Interstate 5 (1-5)
when he saw Martin’s Jaguar hit a truck in front of him. Humphreys testified that
he was traveling at 75 m.p.h. on cruise control and Martin “flew by [him].” Martin
passed Humphreys in the far right lane and “at the last minute he went to veer
and ipped the back of the truck and went tumbling down the freeway.”
Martin’s car flipped end to end and came to a stop in the far left lane.
Humphreys described the collision as “violent” and stated that he “was surprised
that somebody even lived through it. [He] wouldn’t have walked over to that car if
[he] could have because it looked so mangled.” He pulled over to the side of the
road. Later, he talked to “the State Patrol [who he] filled out the statement for” at
the scene.
Corey Webb, the driver of the truck that Martin hit, testified at trial that he
was driving a milk truck tank trailer at about 55 or 60 m.p.h. when he felt Martin’s
car strike the left rear corner of the truck. After the collision, Webb’s truck “had a
flat tire, the fender was bent up, and a couple welds were broken on the
suspension.” Webb talked to “law enforcement” at the scene of the collision.
-2-
No. 77547-2-I I 3
Antonio Tararan, an off-duty police detective, also saw the collision. He
testified at trial that he first saw Martin’s car behind him “traveling extremely
quickly.” Martin’s car “got so close” that he could not see Martin’s car’s
headlights in his rearview mirror and thought Martin was going to hit his vehicle.
Tararan then saw Martin hit the back of the milk truck. He approached Martin
after the collision. He testified that Martin’s eyes were watery and he was
stumbling and slurring his words. Tararan also remembered that Martin “was
very determined to try to find medication in the vehicle.” Martin said it was his
uncle’s medication and then stated that he had changed lanes and someone had
hit him. Tararan told Martin that it was Martin who had hit the truck. While
Tararan was speaking with Martin, Tararan observed that Martin was trying to
pick up a reflector attached to the roadway. Tararan testified that Martin was
“very kind of blasé about what had happened. . . . Wasn’t really concerned about,
you know, was anyone else hurt, you know, what had really happened. It was
like, ‘We need to find the pill bottle.” When Trooper John Tyler, the responding
officer, arrived, Tararan told Tyler what he had seen.
Tyler testified at the suppression hearing that he received a call about the
collision around 9:20 p.m. Tyler stated that he was not and is not a drug
recognition expert (DRE), which requires training in addition to the Washington
State Patrol (WSP) Academy training and the advanced drug intoxication
detection training. He attended six months of basic WSP Academy training,
which included 40 hours of DUI investigation training, and some, but not all, of
-3-
No. 77547-2-1/4
the WSP advanced training in drug intoxication detection. He had made at least
two previous arrests for drug-related DUIs involving a drug other than marijuana.
Tyler testified that when he contacted Martin, “It was very hard to
understand what he was saying. It was very—very slurred speech, almost to the
point that a lot of it didn’t sound like speech so much as just sort of incoherent
noises.” Tyler described Martin’s physical appearance as “[v]ery relaxed, almost
to where he looked like. . . he was falling asleep. He seemed to have a really
hard time keeping his eyes opened.” Tyler described Martin’s coordination as
“very poor. Seemed to have a very hard time just—staying on his feet.” Tyler
observed that “[Martin d]idn’t seem to understand the severity of the actual
collision that had happened.” While Tyler and Martin were walking toward
Martin’s car to retrieve his identification,
he went over to the shoulder. The front bumper of the car was
laying in the median of the interstate, and he walked over to the
front bumper, and he was kind of bending over, and trying to grab it
while he’s trying to stay on his feet. He had to be instructed a
couple of times to leave the front bumper. He was trying to drag it
with him back towards the car. [H]e was struggling pretty
. . .
significantly just to lean over to grab the bumper.
Tyler also testified that Martin did not have any “obvious injuries” to his
limbs or torso that would explain his lack of coordination, did not complain of any
injuries at the time, was generally oriented to their conversation, and provided
answers to Tyler’s questions. Tyler acknowledged that difficulty staying awake,
slurred speech, and lack of balance could be symptoms consistent with a head
injury. He observed blood coming from Martin’s mouth and hand. The aid crew
-4-
No. 77547-2-I I 5
assessed Martin at the scene but did not transport him anywhere. Martin
testified at the suppression hearing that he was later treated for a head injury and
two broken bones in his back.
Tyler affirmed that he ‘spoke with the witnesses, specifically, [Tararan], to
get their version of how the collision occurred.” Tyler learned from the witnesses
that Martin moved into the right lane to pass traffic and then struck the rear of the
truck as he tried to change lanes. Tyler believed that the damage to the front of
Martin’s Jaguar was from the initial contact with the truck and the damage to the
sides and top of the Jaguar appeared fresh because it was not rusted. Tyler also
stated that Tararan told him that he had seen Martin grab a prescription pill bottle
from the shoulder of the interstate. After his conversation with Tararan, Tyler
found an orange prescription pill bottle with no label in the median near the
accident scene. The bottle contained several pills, which Martin told Tyler were
his paraplegic uncle’s pills. Tyler testified that based on his observations and the
witnesses’ statements, he thought Martin was likely impaired by “some sort of
drugs.”
Martin consented to provide a sample for the portable breath test (PBT)
and did the horizontal gaze nystagmus (HGN) test. The PBT did not show
alcohol impairment, and the HGN test did not show nystagmus. But Tyler noted
that while he was conducting the HGN test, Martin still had “heavily slurred”
speech and was “having a very hard time keeping his eyes open and several
-5-
No. 77547-2-I I 6
times looked like he was either passing out or falling asleep.” Following these
tests, Tyler arrested Martin for DUI.
After Martin’s arrest, Trooper Anson Statema, a DRE, performed a drug
evaluation on Martin and concluded that he was under the influence of a narcotic
analgesic like heroin, Oxycodone, or OxyContin. Martin received a blood draw at
Providence Hospital after the DRE exam pursuant to a warrant. His blood tested
positive for the opiate Oxycodone and the benzodiazepines Aiprazolam (Xanax),
Diazepam, and Nordiazepam. The Washington State Crime Lab tested the pills
in the prescription bottle. They were Alprazolam.
ANALYSIS
Martin challenges two of the trial court’s findings of fact in its order
denying his motion to suppress and contends that the court’s remaining findings
do not support its conclusion that Tyler had probable cause to arrest him. We
disagree.
The Fourth Amendment to the United States Constitution and article I,
section 7 of the Washington Constitution both require that probable cause
support a warrantless arrest.1 “Probable cause exists where the facts and
circumstances within the arresting officer’s knowledge and of which the officer
has reasonably trustworthy information are sufficient to warrant a person of
reasonable caution in a belief that an offense has been committed. Probable
1State v. lnman, 2 Wash. App. 281, 287-88, 409 P.3d 1138, review denied,
190 Wash. 2d 1022 (2018).
-6-
No. 77547-2-I I 7
cause is not a technical inquiry.”2 This determination rests on “the totality of facts
and circumstances within the officer’s knowledge at the time of the arrest.”3
When reviewing the denial of a request to suppress evidence, we
determine whether substantial evidence presented at the suppression hearing
supports the challenged findings of fact and whether the findings support the
conclusions of law.4 “Evidence is substantial when it is enough ‘to persuade a
fair-minded person of the truth of the stated premise.”5 Unchallenged findings
are true on appeal.6 We review conclusions of law de novo.7
First, Martin challenges the finding that “Trooper Tyler had direct
observation of the defendant. The trooper is not a Drug Recognition Expert, but
is qualified to make observations and reach an opinion based on his training and
experience.” Martin asserts that substantial evidence does not support this
finding “to the extent [that it] is meant to indicate Trooper Tyler was qualified to
find probable cause at the time of [the] arrest.” He states that Tyler had some
cause to suspect that he was driving impaired as a result of his slurred speech,
difficulty staying awake, and compromised balance. But he contends that Tyler’s
testimony that these symptoms could have been consistent with a head injury
shows Tyler did not have probable cause to arrest him.
2 State v. Terrovona, 105 Wash. 2d 632, 643, 716 P.2d 295 (1986).
~ State v. Fricks, 91 Wash. 2d 391, 398, 588 P.2d 1328 (1979).
~ State v. Garvin, 166 Wash. 2d 242, 249, 207 P.3d 1266 (2009).
~ Garvin, 166 Wash. 2d at 249 (quoting State v. Reid, 98 Wash. App. 152, 156,
988 P.2d 1038 (1999)).
6 State v. O’Neill, 148 Wash. 2d 564, 571, 62 P.3d 489 (2003).
~ Garvin, 166 Wash. 2d at 249.
-7-
No. 77547-2-I I 8
Consistent with the court’s finding, Tyler testified that he interacted with
Martin at the scene and was not a DRE. Contrary to Martin’s argument, Tyler’s
observation of symptoms possibly consistent with a head injury does not
establish that he could not rely on those and other observations to form an
opinion that alcohol or drugs caused Martin’s admitted impairment. Tyler
completed the basic training that the WSP requires before a trooper may conduct
DUI accident investigations. Martin’s suppression request raised the
constitutional issue of whether Tyler had sufficient evidence of impairment to
provide probable cause to arrest Martin, not whether Tyler was qualified to make
observations and draw from them opinions about impairment. Substantial
evidence supports the court’s finding.
Second, Martin challenges the court’s finding, “The driving is consistent
with operating [a] motor vehicle under the influence. The defendant was driving
on 1-5 and rear ended [a] milk truck after passing other vehicles on the right.
That driving is indicative of impairment.” He claims the suppression hearing
record does not support a finding that his driving pattern shows impaired driving.
But Tyler testified about the observations the witnesses reported to him. And
they saw Martin passing vehicles in the far right lane of the interstate at high
speed before huffing the back of a milk truck while trying to change lanes. Martin
appears to claim that evidence of his aggressive driving is not, in itself, sufficient
to establish probable cause. But the trial court did not make this finding. The
trial court found that Martin’s driving was a piece of evidence that supported a
-8-
No. 77547-2-I I 9
conclusion that he drove while impaired. The court did not base its probable
cause conclusion on just this finding but on the totality of the circumstances
known to Tyler. The record supports the court’s challenged finding about part of
these circumstances.
Last, Martin claims that the trial court’s conclusion of law that Tyler had
probable cause to arrest him for DUI does not flow from the remaining findings.
But because substantial evidence supports the findings that Martin challenges
and Martin does not claim that the court’s conclusion does not flow from all 25
findings, we do not address this claim. Similarly, because he does not show that
his arrest was unlawful, we do not address his claim that the court should not
have admitted the results of the DRE evaluation and the blood draw completed
after his arrest.
CONCLUSION
Affirmed.
/
WE CONCUR:
did IC _______________________
-9-