State Of Washington v. Amy Carol Taylor

• Court: Court of Appeals of Washington
• Decided: June 23, 2014
• Docket: 69799-4
• Status: Unpublished

Opinion

.- I!

J. n.'i:; I

mhMiz J h,i S'- 12

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 69799-4-1 Respondent, DIVISION ONE v.

AMY CAROL TAYLOR, UNPUBLISHED OPINION

Appellant. FILED: June 23, 2014

Becker, J. — In this drug possession case, an officer pulled in behind a

parked vehicle, activated his rear strobe lights for illumination, contacted the

driver, asked her if she had a valid driver's license, examined the license when

she handed it to him, ran a warrants check, discovered an outstanding warrant,

and arrested her on the warrant. We conclude there was no seizure until the

driver was arrested.

The encounter occurred at 1:12 a.m. on September 3, 2012. A Marysville

police officer signaled over the radio that he was conducting a traffic stop and

that another vehicle, a small truck, had turned into a gravel driveway area off the

road nearby. Snohomish County Deputy Sheriff Dan Dusevoir responded.

When he arrived, he stopped his vehicle behind the truck, activated his rear

strobe lights, and approached on foot. Deputy Dusevoir testified that when he No. 69799-4-1/2

saw the truck's occupants, he recognized them from earlier contacts, including

one involving the recovery of a significant amount of methamphetamine.

Deputy Dusevoir asked appellant Amy Taylor, the driver of the vehicle, if

she was "clear." The parties agree that Taylor correctly understood he was

asking if she had a valid driver's license. Taylor handed him her license. While

standing by the driver's side window, Deputy Dusevoir performed a warrants

check using his radio and discovered that there was an outstanding warrant for

Taylor's arrest. He moved to take Taylor into custody by opening the car door

and taking hold of Taylor's left wrist.

Taylor resisted and appeared to be clutching something tightly in her

hand. Deputy Dusevoir suspected that Taylor had attempted to dispose of

something between the passenger seat and the driver's seat. Once out of the

vehicle, Taylor appeared to drop something, grind it into the gravel with her foot,

and kick it away. Deputy Dusevoir suspected that she was trying to dispose of

narcotics. He called for a K-9 officer.

The K-9 officer brought a narcotics detection dog to the scene. The dog

sniffed the outside of the vehicle and alerted to the presence of drugs. The car

was impounded. Five days later, a search warrant was authorized, based on

affidavits documenting Deputy Dusevoir's observations and the training and

history of the drug dog and her handler.

When the car was searched pursuant to the warrant, methamphetamine

was found in two separate containers in the vehicle. One plastic container

containing 3.38 grams of methamphetamine was located between the front seats No. 69799-4-1/3

of the vehicle. Another containing 27.78 grams of methamphetamine was found

behind the seats. Taylor was charged with two counts of possession of

methamphetamine. Taylor moved to suppress the methamphetamine. The court

denied the motion. Taylor was tried by a jury and convicted as charged.

Taylor contends Deputy Dusevoir's actions before he learned of the

outstanding warrant constituted a seizure. If his actions did constitute a seizure,

the seizure was unlawful. Detentions must be supported by reasonable

suspicion. State v. Hudson, 124 Wn.2d 107, 112, 874 P.2d 160 (1994). Under

the Fourth Amendment and article I, section 7, the facts relied on by the

detaining officer must be specific and articulable, rather than premised on a

hunch. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); State

v. Armenta, 134 Wn.2d 1, 20, 948 P.2d 1280 (1997). All the deputy knew when

he arrived at the scene was that Taylor had pulled over when the Marysville

police officer pulled another car over and she had parked on the side of the road.

He had no specific or articulable suspicion of criminal activity until he discovered

Taylor's outstanding warrant. We conclude, however, that nothing the deputy did

up to that point amounted to a seizure.

A seizure of a person occurs if, in full view of all the circumstances

surrounding the incident, a reasonable person would have believed that he was

not free to leave. United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct.

1870, 64 L. Ed. 2d 497 (1980); State v. Young, 135 Wn.2d 498, 501, 957 P.2d

681 (1998). "A police officer's conduct in engaging a defendant in conversation

in a public place and asking for identification does not, alone, raise the encounter No. 69799-4-1/4

to an investigative detention." Armenta, 134 Wn.2d at 11. The fact that the

person approached is in a parked vehicle does not by itself convert the encounter

into a seizure. The focus of the inquiry is not on whether the defendant's

movements are confined due to circumstances independent of police action, but

on whether the police conduct was coercive. State v. Thorn, 129 Wn.2d 347,

353, 917 P.2d 108 (1996). overruled on other grounds by State v. O'Neill, 148

Wn.2d 564, 570, 62 P.3d 489 (2003). Thus the question is not merely whether

the defendant felt free to leave, but "whether he felt free to terminate the

encounter, refuse to answer the officer's question, or otherwise go about his

business." Thorn, 129 Wn.2d at 353.

In O'Neill, the court held no seizure occurred when an officer approached

a car that was parked in a public space, shined his spotlight on it, knocked on the

window, shined his flashlight in the face of the occupant, and asked for

identification. O'Neill. 148 Wn.2d at 572-73, 581.

The fact that Deputy Dusevoir activated his rear strobe lights for safety

instead of using a flashlight does not distinguish this case from O'Neill. It would

be a different question if he had activated his emergency lights because that is

more clearly a display of authority signaling that the driver of the vehicle is not

free to leave. State v. Gantt. 163 Wn. App. 133, 141-42, 257 P.3d 682 (2011),

review denied, 173 Wn.2d 1011 (2012). But as the State argues, an officer is not

expected to engage in nighttime roadside contacts in the dark. Doing so would

pose a hazard both to the officer and to passing motorists. The use of the strobe

light here was no more intimidating than the officer's use of the flashlight in No. 69799-4-1/5

O'Neill to shine a light on the face of the occupant or the use of a spotlight in

State v. Mote, 129 Wn. App. 276, 120 P.3d 596 (2005).

In Taylor's view, the part of the encounter that most clearly manifested a

show of authority such that a reasonable person would not feel free to leave was

the deputy's question to Taylor about whether she had a valid driver's license.

An officer may request the name and date of birth of the occupant of a

parked vehicle and use that information to conduct a warrants check without a

seizure occurring. Mote, 129 Wn. App. at 292. Taylor contends that asking

whether she had a valid driver's license was more coercive than merely asking

for identification because it indicated the officer's suspicion that she was driving

illegally and implicitly commanded her to prove that she was not.

At oral argument before this court, Taylor asserted that a factually

comparable case showing that the officer's question was coercive is State v.

Soto-Garcia, 68 Wn. App. 20, 841 P.2d 1271 (1992). abrogated on other grounds

bv Thorn, 129 Wn.2d 347, 351, 917 P.2d 108(1996). In that case, an officer who

was patrolling a street in Kelso at night saw the defendant walking out of an alley

and asked him where he was going and what he was doing. The defendant

answered these questions appropriately. The officer next asked the defendant

for his name. The defendant offered his driver's license. The officer asked him if

he had any cocaine on his person. The defendant responded that he did not.

The officer asked for permission to search the defendant. The defendant gave

permission. The officer reached into the defendant's shirt pocket and found

cocaine. This led to a charge of cocaine possession. The trial court granted the No. 69799-4-1/6

defendant's motion to suppress. The State appealed. The trial court ruling was

affirmed on the ground that the discovery of the cocaine was the result of

coercive questioning that occurred before the officer had a reasonable suspicion

of criminal activity:

Considering all of the circumstances surrounding the encounter between Tate and Soto-Garcia, the evidence was sufficient for the trial court to conclude that a reasonable person would not have felt free to decline the police officer's requests that he provide information regarding his activities and submit to a search. The atmosphere created by Tate's progressive intrusion into Soto- Garcia's privacy was of such a nature that a reasonable person would not believe that he or she was free to end the encounter.

The trial court's findings, as well as the record, reveal that Soto-Garcia had done nothing before being confronted by Tate which would suggest that he had committed any criminal act. Soto- Garcia was merely walking on the streets of Kelso in the late evening, albeit in an area apparently known for cocaine trafficking, when Tate observed him. For reasons known only to the officer, Tate confronted Soto-Garcia and began questioning him. After Soto-Garcia answered Tate's questions "appropriately", Tate decided to run an "identification check". While Soto-Garcia apparently produced his identification voluntarily in response to Tate asking him his name, there is no evidence that suggests that he consented to the identification check. Although the check revealed no outstanding warrants for Soto-Garcia, Tate apparently remained curious, and he asked Soto-Garcia if he had any cocaine on his person. We agree with the trial judge that at this point, Soto- Garcia was seized.

Soto-Garcia, 68 Wn. App. at 25.

Unlike in Soto-Garcia, here there was no "progressive intrusion" into

Taylor's privacy. The officer asked her only one question. In view of the totality

of the circumstances, nothing suggests that the question was more coercive than

asking to see her license or asking for her name and date of birth. We conclude No. 69799-4-1/7

the question asked here was not an appreciably greater show of authority than

the request for identification in O'Neill.

In response to the question, Taylor handed over her driver's license. She

contends that a seizure occurred when Deputy Dusevoir held onto the license

while using his radio to check for warrants. But the deputy did not leave with the

license. He testified that he was standing right next to Taylor while he was

holding her license. Ifthe license is not removed from the defendant's presence,

there is no seizure. State v. Smith, 154 Wn. App. 695, 700, 226 P.3d 195, review

denied, 169Wn.2d 1013(2010).

Taylor argues that use of the identifying information found on her license

to run a warrants check was an investigatory detention like in State v. Rankin,

151 Wn.2d 689, 695-97, 92 P.3d 202 (2004) (seizure of passenger occurred

when officer, in the course of a lawful traffic stop, requested passenger's

personal information and ran a warrants check). But the Rankin court was

"focused on the different circumstances encountered by pedestrians and

passengers in moving cars that were stopped by police." Mote, 129 Wn. App. at

290.

Following O'Neill and Mote, we conclude Taylor was not seized until she

was arrested on the warrant.

The other disputed issues in the case involve the dog sniff. Taylor

contends the dog sniff was a search and the results must be suppressed

because it was conducted without a warrant. No. 69799-4-1/8

A dog sniff of a place where the defendant does not have a reasonable

expectation of privacy does not constitute a search. State v. Bovce. 44 Wn. App.

724, 723 P.2d 28 (1986). In Bovce, the dog sniffed a bank safe deposit box.

The dog handler had permission to be in the area, the defendant could not

control who was there, and there was no seizure of the safety deposit box.

Bovce, 44 Wn. App. at 730. The court found it was not a search:

As long as the canine sniffs the object from an area where the defendant does not have a reasonable expectation of privacy, and the canine sniff itself is minimally intrusive, then no search has occurred.

Bovce, 44 Wn. App. at 730. Cf State v. Dearman. 92 Wn. App. 630, 635, 962

P.2d 850 (1998) (under article I, section 7, a dog sniff is a search when it is

directed at the outside of a home), review denied, 137 Wn.2d 1032 (1999).

No material distinction exists between a dog sniff directed at the exterior of

a vehicle and a dog sniff directed at a safety deposit box. This court has already

held, on slightly different facts, that a dog sniff of a vehicle is not a search. State

v. Hartzell. 156 Wn. App. 918, 237 P.3d 928 (2010). In Hartzell. the dog sniffed

the air coming from an open window of a car and then led police to a firearm 100

yards away. We concluded that the defendant did not have a reasonable

expectation of privacy in the air coming from the open window of the vehicle.

Hartzell, 156 Wn. App. at 929-30.

Bovce and Hartzell establish that when the officer and dog are lawfully

situated outside the place or object being sniffed, then no privacy interest is

implicated as long as the place is not a home. Here, the K-9 handler and dog

were lawfully present outside Taylor's car. Following Bovce and Hartzell, we

8 No. 69799-4-1/9

conclude the dog sniff did not constitute a search. Accord, Illinois v. Caballes.

543 U.S. 405, 409, 125 S. Ct. 834, 160 L. Ed. 2d 842 (2005).

The dog alerted after sniffing Taylor's car, signaling the presence of drugs.

This information was included in the affidavit in support of a warrant to search the

car. Taylor challenges the adequacy of the affidavit.

The affidavit described the dog team's training. The training included a 4-

week course for the officer and dog together and a 14-week course for the dog

alone. According to the affidavit, the officer and dog had a history of "800

applications where controlled substances were discovered and / or the odor of

controlled substances was present." However, the affidavit contained no

information about the frequency of false alerts, and Taylor argues that the

number of correct alerts by the dog is meaningless unless accompanied by a

track record of false positive and false negatives.

Generally, an alert by a trained drug dog is sufficient to establish probable

cause for the presence of a controlled substance. State v. Jackson, 82 Wn. App.

594, 606, 918 P.2d 945 (1996), review denied, 131 Wn.2d 1006 (1997). This

court has determined that an affidavit similar to the one in this case was sufficient

to establish probable cause. State v. Flores-Moreno, 72 Wn. App. 733, 741, 868

P.2d 648, review denied, 124 Wn.2d 1009 (1994). The affidavit stated that the

drug dog had received 525 hours of training, had been certified by the

Washington State Police Canine Association for narcotics detection, and had

participated in 97 searches where narcotics were found. Flores-Moreno, 72 Wn.

App. at 741. Following Flores-Moreno, we conclude the information about the No. 69799-4-1/10

track record of the dog and her handler was sufficient even though it did not

quantify the number of inaccurate alerts.

And even if the dog sniff did not conclusively establish probable cause, the

warrant was also supported by Deputy Dusevoir's observation that Taylor

appeared to hide something between the seats of the vehicle and then grind

something into the ground when she was arrested.

We conclude the information offered in support of the warrant was enough

to establish probable cause to search the vehicle.

Taylor was convicted of two counts of possession of methamphetamine

based on the two containers found in different places inside the car. She

contends the two convictions violate double jeopardy because both containers of

methamphetamine were found in the same search. The State concedes this

point. We accept the concession. State v. Adel, 136 Wn.2d 629, 965 P.2d 1072

(1998).

Taylor filed a statement of additional grounds in which she challenges the

credibility of the deputy who arrested her. She suggests that the other occupant

of the vehicle was the owner of the drugs, and she points out alleged

inconsistencies in the evidence and testimony. Because this court does not

resolve disputed facts or issues of credibility, the statement of additional grounds

does not present issues warranting further scrutiny.

Affirmed in part. We reverse and remand with instructions to vacate the

second conviction for possession of methamphetamine.

10 No. 69799-4-1/11

2b ^A~, f UVK^ .