State Of Washington v. Anthony Burr

• Court: Court of Appeals of Washington
• Decided: April 28, 2014
• Docket: 70055-3
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ] No. 70055-3-1

Respondent, , DIVISION ONE

V. j

o ANTHONY BURR, UNPUBLISHED r-J COO -Her

m Appellant. ) FILED: ADril 28, 2014 -X3 TO 0-T( rv> ca

c/>m U 25 3:>° Cox, J. - Anthony Burr appeals his judgment and sentence, claiming thaf^ p^ —

the traffic stop that preceded the discovery of evidence was pretextual. Because

a suspected traffic infraction was an actual, conscious, and independent cause of

the traffic stop, we disagree.

The State charged Burr with one count of possession of a controlled

substance with intent to manufacture or deliver with a firearm and one count of

unlawful possession of a firearm in the second degree.

The charges were based on an incident that occurred in March 2010.

Deputy Bryan Brittingham saw a car turn left onto 112 Street SE in Snohomish

County. Once on this street, the car changed lanes without using a turn signal.

Deputy Brittingham also noted that the vehicle was traveling approximately 15

miles per hour below the posted speed limit. No. 70055-3-1/2

Deputy Brittingham conducted a traffic stop of the car. He immediately

recognized the driver as Anthony Burr. He was aware that Burr was a convicted

felon who had recently been found in possession of a loaded firearm. Deputy

Brittingham asked Burr to keep his hands on the steering wheel, but Burr kept

moving his hand to his left pants pocket.

Deputy Brittingham removed Burr from the car and patted him down for

weapons. Deputy Brittingham found 8 grams of methamphetamine in Burr's

pocket. He also searched Burr's car after obtaining a warrant and recovered a

loaded handgun. The handgun had been reported stolen.

Burr moved to suppress all evidence on the grounds that Deputy

Brittingham lacked probable cause to stop Burr and the stop was pretextual.

At a hearing on the motion, the trial court orally denied the motion. It

concluded that there was sufficient evidence to establish probable cause that a

traffic infraction had occurred. It later entered written findings of fact and

conclusions of law on the motion.

Burr stipulated to a bench trial on agreed documentary evidence. The trial

court found Burr guilty as charged. The trial court later entered findings of fact

and conclusions of law on the conviction.

Burr appeals.

MOTION TO SUPPRESS

Burr argues that the trial court erred when it denied his motion to suppress

evidence because the traffic stop was pretextual. Specifically, he argues that

"[although [Deputy Brittingham] had a valid reason to stop Burr for the improper No. 70055-3-1/3

lane change, the true reason for the stop was to determine whether [Burr] was

driving under the influence." We disagree.

"'As a general rule, warrantless searches and seizures are per se

unreasonable.'"1 But a warrantless seizure is valid if it falls within the scope of

one of the narrowly drawn exceptions to the warrant requirement.2

Law enforcement officers may conduct a warrantless traffic stop if they

have a reasonable and articulable suspicion that a traffic violation has occurred

or is occurring.3 The State bears the burden of proving that a warrantless

seizure falls within an exception to the warrant requirement.4

But "pretextual traffic stops violate article I, section 7, [of the Washington

constitution] because they are seizures absent the 'authority of law' which a

warrant would bring."5 A pretextual stop is when the officer "relies on some legal

authorization as 'a mere pretext to dispense with [a] warrant when the true

reason for the seizure is not exempt from the warrant requirement.'"6

1 State v. Ladson, 138 Wn.2d 343, 349, 979 P.2d 833 (1999) (internal quotation marks omitted) (quoting State v. Hendrickson, 129 Wn.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 Wn.2d 284, 294, 290 P.3d 983 (2012) (alteration in original) (quoting Ladson, 138 Wn.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 Wn.2d at 358-59.

8 Arreola, 176 Wn.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 Wn.2d 284, 298-99, 290 P.3d 983 (2012).

13 Id at 299.

14 State v. Hoanq, 101 Wn. App. 732, 742, 6 P.3d 602 (2000).

15 Brief of Appellant at 12.

16 176 Wn.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. fcoA^ WE CONCUR:

il^/zirt*^ LaJ n^J.^^—7^i

17 Brief of Appellant at 14.