State Of Washington v. Stephen M. Shellabarger ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 80634-3-I
Respondent, DIVISION ONE
v.
UNPUBLISHED OPINION
STEPHEN MARK SHELLABARGER,
Appellant.
CHUN, J. — A dog sniff led to the discovery of methamphetamine in
Stephen Shellabarger’s truck. The State charged him with possession of a
controlled substance. Shellabarger moved to suppress the drugs, which motion
the trial court denied. Shellabarger then waived his right to a jury trial and
proceeded to a stipulated bench trial, reserving his right to appeal the denial of
his motion to suppress. The court convicted him as charged. Shellabarger
appeals. Because the dog sniff prolonged the traffic stop at issue without
reasonable suspicion, we reverse to suppress the evidence.
I. BACKGROUND
Trooper Michael Farkas pulled Shellabarger over after witnessing him
speeding and changing lanes without signaling. Shellabarger took several
minutes to find his license, registration, and proof of insurance. Farkas returned
to his patrol vehicle and ran a check on Shellabarger’s license, which revealed a
prior conviction for possession of a controlled substance. Farkas called Trooper
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 80634-3-I/2
Evan Clark for backup, stating that he would try to get Shellabarger’s consent to
search his truck, and that he planned on issuing a citation for Shellabarger’s
driving.
Farkas returned and twice asked for consent to search Shellabarger’s
truck. Shellabarger did not consent. Farkas conducted field sobriety tests on
Shellabarger.
Farkas returned to his patrol vehicle and asked another officer to conduct
a dog sniff, stating that while Shellabarger’s balance was bad, he did not plan to
issue a citation for driving under the influence (DUI). Farkas stated that he
wanted to see if a dog sniff would provide probable cause for a search warrant.
Farkas then brought Shellabarger back to his patrol vehicle and used a
portable breathalyzer test on him. The test indicated a blood alcohol content of
zero. Farkas did not issue a DUI citation but did issue a citation for speeding and
explained it to Shellabarger. Just as Farkas and Shellabarger finished
discussing the specifics of the citation, Deputy Richard VanWyck arrived at the
truck with his K9 partner, Axel, and began a dog sniff. Shellabarger asked,
“What’s happening here?” Farkas responded that they were “just checking the
vehicle.” The two discussed no further details of the citation after the dog sniff
began.
Axel gave a “weak alert” near a McDonald’s bag inside the truck. Officers
again asked for consent to search the truck, which Shellabarger granted.
Officers asked Shellabarger to remove the McDonald’s bag from the truck. He
removed it and Farkas took the bag from him. Officers opened the bag and
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found an Altoids tin inside that contained methamphetamine. The State charged
Shellabarger with possession of methamphetamine.
Shellabarger moved to suppress the evidence found in the search.
Farkas testified at the suppression hearing. He stated that his first observation of
Shellabarger was that he had bloodshot watery eyes, fast speech, and very quick
body movements, all of which were consistent with use of stimulants. Farkas
also stated that he had called for additional backup because he saw Shellabarger
making furtive movements in his truck, he smelled marijuana, and he saw objects
such as mint tins that can be used to store drug paraphernalia.
The trial court denied Shellabarger’s motion to suppress. It concluded that
“[t]he expansion of the stop beyond the investigation of the observed infractions
was justified given Trooper Farkas’s observations of impairment,” and that “[t]he
length of detention for the entire stop was reasonable given all that was taking
place from the time the vehicle was pulled over.” It also concluded that “[t]he K9
search was reasonable since the processing of the citation had not been
completed when the search began.” Shellabarger then waived his right to a jury
trial and proceeded to a stipulated bench trial under the agreement that he could
appeal the denial of his motion to suppress. The court convicted him as charged.
II. ANALYSIS
Shellabarger argues that the dog sniff of his truck prolonged the traffic
stop without reasonable suspicion, and thus the trial court should have
suppressed the evidence seized in the ensuing search. The State responds that
the dog sniff did not exceed the scope of the stop because it did not prolong the
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stop beyond the time reasonably required to investigate a possible DUI and issue
a traffic citation. But the State fails to show by clear and convincing evidence
that (1) the dog sniff did not prolong the traffic stop, and (2) Trooper Farkas had
reasonable suspicion for the sniff. We thus reverse to suppress the discovered
evidence.1
We review a trial court’s denial of a motion to suppress to determine if
substantial evidence supports the challenged findings of fact and whether those
findings support the conclusions of law. State v. Campbell, 166 Wn. App. 464,
469, 272 P.3d 859 (2011). “Evidence is substantial when it is enough ‘to
persuade a fair-minded person of the truth of the stated premise.’” State v.
Z.U.E., 178 Wn. App. 769, 778, 315 P.3d 1158 (2014) (quoting State v. Garvin,
166 Wn.2d 242, 249, 207 P.3d 1266 (2009)). Unchallenged findings of fact are
verities on appeal. Campbell, 166 Wn. App. at 469. We review de novo the trial
court’s legal conclusions resulting from a suppression hearing. Id.
“The Fourth Amendment to the United States Constitution and article I,
section 7 of the Washington Constitution generally prohibit searches and
seizures absent a warrant or a recognized exception to the warrant requirement.”
State v. Hendricks, 4 Wn. App. 2d 135, 141, 420 P.3d 726 (2018). The State
bears the burden of establishing by clear and convincing evidence that an
exception applies. Garvin, 166 Wn.2d at 250. Courts must suppress evidence
seized in an unconstitutional search. State v. Monaghan, 165 Wn. App. 782,
1
Because of our conclusion, we do not reach Shellabarger’s other assignments
of error.
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789, 266 P.3d 222 (2012). If a trial error is of a constitutional magnitude, we
presume prejudice and the State bears the burden of proving the error was
harmless beyond a reasonable doubt. City of Vancouver v. Kaufman, 10 Wn.
App. 2d 747, 754, 450 P.3d 196 (2019).
A warrantless traffic stop is constitutional “only if the officer had, from the
beginning, a reasonable articulable suspicion that [an] infraction had occurred
and the stop was reasonably related in scope to the circumstances that justified
the interference in the first place.” State v. Allen, 138 Wn. App. 463, 470, 157
P.3d 893 (2007).2 Authority to conduct such a seizure “ends when tasks tied to
the traffic infraction are—or reasonably should have been—completed.”
Rodriguez v. United States, 575 U.S. 348, 354, 135 S. Ct. 1609, 191 L. Ed. 2d
492 (2015). A dog sniff is not part of an officer’s ordinary traffic mission. Id. at
356. Thus, absent reasonable suspicion, an officer may not prolong a traffic stop
to conduct a dog sniff. Id. at 355.
In Illinois v. Caballes, an officer conducted a dog sniff of the defendant’s
car while another officer wrote the defendant a warning ticket. 543 U.S. 405,
406, 125 S. Ct. 834, 160 L. Ed. 2d 842 (2005). The United States Supreme
Court concluded that this did not violate the prohibition against unlawful searches
and seizures. Id. at 408. However, the Court cautioned that “[a] seizure that is
2
Analysis for whether such a stop is valid under article I, section 7 of our
constitution “generally tracks the Fourth Amendment analysis,” with the exception that
such a stop “requires a reasonable suspicion connecting a particular person to a
particular crime rather than a general suspicion that someone is up to no good.” State v.
Lee, 7 Wn. App. 2d 692, 701–02 n.27, 435 P.3d 847 (2019) (citing Z.U.E., 183 Wn.2d
610, 617, 352 P.3d 796 (2015)).
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justified solely by the interest in issuing a warning ticket to the driver can become
unlawful if it is prolonged beyond the time reasonably required to complete that
mission.” Id. at 407.
Here, the dog sniff began just as Shellabarger and Trooper Farkas
finished discussing the details of the citation. The trial court determined that
“[t]he length of detention for the entire stop was reasonable given all that was
taking place from the time the vehicle was pulled over” and that “[t]he K9 search
was reasonable since the processing of the citation had not been completed
when the search began.” But the question, under Rodriguez, is whether the dog
search prolonged the detention, not whether the length of the entire stop was
reasonable, or whether there was some overlap in time between the traffic stop
and sniff. See 575 U.S. at 357, 135 S. Ct. 1609 (rejecting the Government’s
argument that it may incrementally prolong a stop to conduct a dog sniff if it is
reasonably diligent in pursuing the traffic-related purpose of the stop and the
overall duration of the stop remains reasonable). Trooper Farkas and
Shellabarger discussed no further details of the citation after the dog sniff
began.3 Because the dog sniff continued past the time required for the traffic
stop, the sniff prolonged the stop. The State has not carried its burden of
showing otherwise.
Thus, we must next consider whether the troopers had reasonable
suspicion to conduct a dog sniff, a question the trial court did not squarely reach
3
And the fact that Trooper Farkas used a portable breath test on Shellabarger
after stating that he did not plan to issue a DUI may elicit the inference that he did so to
extend the traffic stop until the dog sniff began.
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No. 80634-3-I/7
in its suppression order.4 “A suspicion is reasonable when it is based upon the
‘substantial possibility that criminal conduct has occurred or is about to occur.’”
State v. Johnson, 8 Wn. App. 2d 728, 746, 440 P.3d 1032 (2019) (quoting State
v. Kennedy, 107 Wn.2d 1, 6, 726 P.2d 445 (1986)). “A reasonable suspicion
must ‘be grounded in specific and articulable facts,’” and cannot be predicated
upon speculation or mere hunches. Johnson, 8 Wn. App. 2d at 746 (quoting
Z.U.E., 183 Wn.2d 610, 617, 352 P.3d 796 (2015)). And “[t]he available facts
must substantiate more than a mere generalized suspicion that the person
detained is ‘up to no good’; the facts must connect the particular person to the
particular crime that the officer seeks to investigate.” Z.U.E., 183 Wn.2d at 618(quoting State v. Bliss, 153 Wn. App. 197, 204, 222 P.3d 107 (2009)).
The State says in its brief that Trooper Farkas had reasonable suspicion
of DUI. But at oral argument, the State conceded that no reasonable suspicion
existed at the time Farkas issued Shellabarger a citation for speeding. And prior
to the dog sniff and after the field sobriety tests, Trooper Farkas said he did not
plan to arrest Shellabarger for DUI.5 Farkas testified at the suppression hearing
that after completing the field sobriety tests, he did not plan to arrest
Shellabarger for DUI.6 And while, at the suppression hearing, Farkas testified
4
The trial court concluded that “[t]he expansion of the stop beyond the
investigation of the observed infractions was justified given Trooper Farkas’s
observations of impairment,” but this conclusion does not comport with the requirements
of the law on reasonable suspicion as discussed below.
5
“His balance is bad, eyes aren’t really dilated, blood shot yeah. Not going to do
[DUI] or anything.”
6
“After completing the field sobriety test, I could tell there was a consumption of
foreign substance, however he wasn’t impaired enough for me to arrest him for DUI.”
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No. 80634-3-I/8
that he had reasonable suspicion at the time he asked for a dog sniff, he was
unable to articulate what crime he suspected at that moment. The State offers
no explanation for what other crimes Trooper Farkas might have reasonably
suspected. See Z.U.E., 183 Wn.2d at 618 (“[T]he facts must connect the
particular person to the particular crime that the officer seeks to investigate.”).
The State bears the burden of demonstrating that an exception to the
prohibition against warrantless searches applies by clear and convincing
evidence, and because it cannot show reasonable suspicion for the dog sniff, it
fails to meet this burden.7 Garvin, 166 Wn.2d at 250.
The trial court erred in denying Shellabarger’s motion to suppress. The
State does not argue that the error was harmless beyond a reasonable doubt.
Nor do we see any basis for such an argument. We reverse to suppress the
evidence found in the dog sniff.
WE CONCUR:
7
Shellabarger presents numerous arguments asserting that the State lacked
reasonable suspicion for the dog sniff—namely, that his prior drug conviction, his lack of
consent, and the Altoids tin cannot serve to establish reasonable suspicion. Although
the State bears the burden of establishing an exception to the warrant requirement
applies, it largely does not address these arguments. Instead, it appears to rely on the
assertion that the dog sniff did not prolong the traffic stop.
8