State Of Washington v. Anthony Burr ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ] No. 70055-3-1
Respondent, , DIVISION ONE
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ANTHONY BURR, UNPUBLISHED r-J
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Appellant. ) FILED: ADril 28, 2014 -X3
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Cox, J. - Anthony Burr appeals his judgment and sentence, claiming thaf^ p^
—138 Wash. 2d 343, 349, 979 P.2d 833 (1999) (internal
quotation marks omitted) (quoting State v. Hendrickson, 129 Wash. 2d 61, 70, 917
P.2d 563 (1996)).
2 jd, at 349-50.
3 id, at 349.
4 Id, at 350.
5 Id at 358.
6 State v. Arreola, 176 Wash. 2d 284, 294, 290 P.3d 983 (2012) (alteration in
original) (quoting Ladson, 138 Wash. 2d at 358).
No. 70055-3-1/4
When determining whether a stop is pretextual, courts 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."7
"So long as a police officer actually, consciously, and independently
determines that a traffic stop is reasonably necessary in order to address a
suspected traffic infraction, the stop is not pretextual in violation of article I,
section 7, despite other motivations for the stop."8
This court reviews de novo conclusions of law such as whether a stop is
pretextual.9
Here, the trial court heard and found credible the testimony of Deputy
Brittingham. And the trial court concluded that Deputy Brittingham "had a
reasonable suspicion to believe [Burr] committed a traffic infraction and
conducted a proper Terry stop on [Burr's] vehicle."10 With this conclusion, it
implicitly rejected any argument that the stop was pretextual.
The trial court appears to have considered Deputy Brittingham's subjective
intent and objective reasonableness as evidenced by its findings of fact that
Deputy Brittingham testified that he saw Burr's car change lanes "without using a
turn signal," that "the vehicle was traveling approximately 15 miles below the
7 Ladson, 138 Wash. 2d at 358-59.
8 Arreola, 176 Wash. 2d at 288.
9 Id at 291.
10 Clerk's Papers at 122.
No. 70055-3-1/5
posted speed limit," and that "Deputy Brittingham conducted a traffic stop [of] the
car."11
Additionally, Deputy Brittingham's testimony offered further insight about
his subjective motivations. He testified that on March 17, 2010, he was on duty
as a patrol officer. His duties include making traffic stops and enforcing traffic
laws. He testified that his attention was drawn to Burr's car because it was
driving very slowly. Deputy Brittingham then observed the car change lanes
without using a turn signal. He activated his lights and pulled Burr over.
Deputy Brittingham testified that, based on these driving actions, it
crossed his mind that the driver might be under the influence. But he testified
several times that he stopped Burr for failure to use his turn signal.
The trial court did not make any finding that Deputy Brittingham had a brief
thought that the driver was under the influence. Thus, we assume the trial court
did not find this of any consequence.
Further, even if we were to accept Burr's arguments that Deputy
Brittingham was also motivated by a desire to investigate a possible DUI, our
conclusion is the same. As the supreme court held in State v. Arreola, a "mixed-
motive stop" does not violate article I, section 7 so long as the police officer
makes an independent and conscious determination that "a traffic stop to
address a suspected traffic infraction is reasonably necessary in furtherance of
11 Id. at 121-22.
No. 70055-3-1/6
traffic safety and the general welfare."12 As the court stated, "That remains true
even if the legitimate reason for the stop is secondary and the officer is motivated
primarily by a hunch or some other reason that is insufficient to justify a stop."13
In sum, Deputy Brittingham had a reasonable articulable suspicion that
Burr committed a traffic infraction and decided that a traffic stop was reasonably
necessary. Accordingly, the trial court properly rejected Burr's argument that the
traffic stop was pretextual.
Burr argues that Deputy Brittingham did not cite Burr for the traffic
infraction and that this is one factor to consider when determining the officer's
subjective intent for making the stop. That may be true, but that factor is not
dispositive.14 Here, the totality of the circumstances support the court's
conclusion that the stop was not pretextual. Burr's argument to the contrary is
not persuasive.
Burr also argues that it is "reasonable to infer from the circumstances that
Deputy Brittingham stopped Burr to investigate for DUI."15 But even if this was
the primary reason for the stop, under Arreola, this inference does not alter our
analysis because Deputy Brittingham had an actual, conscious, and independent
reason to stop Burr based on the traffic infraction.16
12 176 Wash. 2d 284, 298-99, 290 P.3d 983 (2012).
13 Id at 299.
14 State v. Hoanq, 101 Wash. App. 732, 742, 6 P.3d 602 (2000).
15 Brief of Appellant at 12.
16 176 Wash. 2d 284, 298-99, 290 P.3d 983 (2012).
No. 70055-3-1/7
Burr argues that Arreola is not fatal to his case because Deputy
Brittingham did not testify that he made a "conscious decision" to stop Burr for
failure to use his turn signal, that he did not say how often he stopped cars for
failing to signal, and he did not testify that this stop was "reasonably necessary in
furtherance of traffic safety and the general welfare."17
But, as discussed previously, Deputy Brittingham expressly testified that
the reason for the stop was the traffic infraction, and Arreola does not require the
officer to explicitly state that this stop is "necessary for the general welfare."
Based on the record, the trial court considered Deputy Brittingham's subjective
intent and the objective circumstances as required under Washington law. Burr's
argument is not persuasive.
We affirm the judgment and sentence.
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WE CONCUR:
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17 Brief of Appellant at 14.