State Of Washington v. Kirk Mcglone ( 2013 )

FILED
CORT OF APPEALS.
M11SIONi
2013 APR -9 API 9: 04
ST
B
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON,
Respondent, No. 43220 0 II
- -
V.
UNPUBLISHED OPINION
KIRK P. McGLONE,
Appellant.
VAN DEREN, J. —Kirk McGlone appeals from his conviction for possession of
marijuana, arguing that the trial court erred by denying his motion to suppress the evidence of
marijuana. We affirm.
Ina section of the northbound lane of U"
" Street in Pacific County, tree roots had pushed
up the pavement, creating three-to six inch bumps in the road. Washington State Patrol Trooper
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Jesse Greene patrolled " "
U Street on occasion. Whenever he saw a driver cross the centerline of
U"
Street into the southbound lane without signaling to avoid the bumps, he would stop the
vehicle for violating the rules of the road. He also said that " "
U Street is one of the three streets
where he finds most of his DUI arrests.
1
A commissioner of this court initially considered McGlone's appeal as a motion on the merits
under RAP 18. 4 and then transferred it to
1 a
panel of judges.
No. 43220 0 II
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On April 16, 2011, Greene was following a black Ford Explorer travelling northbound on
U"
Street when he twice saw the Explorer swerve the southbound lane in the area of the
bumps. He stopped the Explorer, which was being driven by McGlone. He observed that
McGlone had a flushed face, bloodshot and watery eyes, and poor finger dexterity. He also
smelled alcohol on McGlone's breath. He arrested McGlone for driving while under the
influence of alcohol. He searched McGlone incident to that arrest and found a baggie and two
film containers in McGlone's jacket breast pocket. Each contained what appeared to be
marijuana. McGlone obtained a search warrant for the Explorer. Greene searched the Explorer
and seized a shoe box containing marijuana and pills that proved to be hydrocodone.
The State charged McGlone with possession of marijuana with intent to deliver and with
possession of hydrocodone. The trial court denied McGlone's motion to suppress the evidence
of the marijuana and hydrocodone because they had been obtained as a result of a pretext traffic
stop. The jury acquitted McGlone of possession of marijuana with intent to deliver and of
possession of hydrocodone, but convicted him of the lesser -included offense of possession of
Tess than 40 grams of marijuana.
McGlone argues that the trial court erred in denying his motion to suppress because the
traffic stop was a pretext for Greene to investigate whether the Explorer was being driven by
someone under the influence of alcohol. McGlone does not assign error to the trial court's CrR
3. findings of fact,so they are verities on appeal. RAP 10. (
6 ' g); Hill, 123 Wn. d 641,
3 State v. 2
644, 870 P. d 313 (1994);
2 State v. Picard, 90 Wn. App. 890, 896, 954 P. d 336 (1998).This
2
court reviews the CrR 3. conclusions of law de novo. State v. Mendez, 137 Wn. d 208, 214,
6 2
970 P. d 722 (
2 1999).
2.
No. 43220 0 II
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Washington citizens hold a constitutionally protected interest against warrantless traffic
stops on a mere pretext to dispense with the warrant when the true reason for the seizure is not
exempt from the warrant requirement. State v. Ladson, 138 Wn. d 343, 358, 979 P. d 833
2 2
1999).A pretextual traffic stop occurs when the over a citizen, not to enforce the
police " ull[ ]
p
traffic code, but to conduct a criminal investigation unrelated to the driving."
Ladson, 138
Wn. d at 349. Whether a given stop is pretextual is based on the totality of the circumstances,
2
including both the subjective intent of the officer as well as the objective reasonableness of the
officer's behavior."Ladson, 138 Wn. d at 358 59:
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McGlone fails to demonstrate that the traffic stop was pretextual under Ladson. In
Ladson, the' olice recognized the driver of a car as 'a drug dealer, according to an
p
unsubstantiated street rumor."Ladson, 138 Wn. d at 346. The police " hadowed the vehicle"
2 s
until making a traffic stop on the grounds that the car's license plate tabs had expired five days
earlier. Ladson, 138 Wn. d at 346. The police admitted the stop was a pretext for investigating
2
whether the driver was involved in drug dealing..
Ladson, 13 8 Wn. d at 346. The Supreme
2
Court held such an admitted pretextual traffic stop Was unconstitutional: Ladson; 138 Wn. d at
2
358 59.
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The facts of this case are instead consistent with those in State v. Hoang, 101 Wn. App.
732, 742, 6 P. d 602 (2000).In Hoang, a police officer on routine patrol duty, while parked near
3
a narcotics hot spot, saw a car make a lefthand turn without signaling. 101 Wn. App. at 735.
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The officer stopped the car, obtained the driver's license, determined the driver's license had
been suspended, and then arrested the driver for driving while license suspended. Hoang, 101
Wn. App. at 736. The officer's subsequent search incident to arrest located cocaine. Hoang, 101
3
No. 43220 0 II
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Wn. App. at 736. Hoang moved to suppress, citing Ladson, but both the superior court and this
court concluded the officer had not conducted an impermissible pretext stop:
U] Ladson and [State v.]
nlike DeSantiago, 97 Wn. App. 446, 451 53, 983 P. d
[ - 2
1173 (1999)], the officer did not follow Hoang hoping to find a legal reason
here,
to stop him: Hoang made a left hand turn without signaling right before the
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officer's eyes, and the officer immediately.pulled him over,just as he would have
for any other routine stop for a traffic infraction committed in his presence.
Under Ladson, even patrol officers whose suspicions have been
aroused may still enforce the traffic code, so long as enforcement of the traffic
code is the actual reason for the stop.
Hoang, 101 Wn.App. at 741 42.
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When determining whether a given stop is pretextual, the court should consider the
totality of the circumstances, including both the subjective intent of the officer as well as the
objective reasonableness of the officer's behavior."Ladson, 138 Wn. d at 358 59. Here, like in
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Hoang, Trooper Greene saw a violation occur when he was behind the Explorer; he did not
follow the Explorer waiting for a violation to occur, as the officers did in Ladson. And he
testified that he routinely patrols " "
U Street and always stops vehicles that cross the centerline of
the street without signaling, in contrast to the officers in Ladson, where their specialized gang
detail did not include enforcing traffic laws. The trial court, in considering the totality of the
circumstances, did not err in concluding that Trooper Greene's stop was not pretextual.
Therefore, it did not err in denying McGlone's motion to suppress.
2
No. 43220 0 II
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We affirm McGlone's conviction.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports,but will be filed for public record in accordance with RCW
040,
2.6.it is so ordered.
0
VAN DEREN, J.
We concur:
HUNT, J.
B GE , J. .
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