>jk ; C-~ J-
2015 JAM 20 Fi-'J2: i
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 71196-2-1 Respondent, DIVISION ONE v.
BRADLEY D. MCALLISTER, UNPUBLISHED OPINION
Appellant. FILED: January 20, 2015
Spearman, C.J. — Bradley McAllister was charged with unlawful
possession of methamphetamine. He moved to suppress evidence discovered
during a search incident to his arrest. McAllister was stopped after a random
license plate check on the car McAllister was driving showed an arrest warrant
for a man named Bradley McAllister who was "associated" with the vehicle. The
vehicle was registered to a woman, Shakinah McAllister. Following the stop,
McAllister was arrested on the warrant and drugs were found on his person and
in the car in the search incident to arrest. He appeals, claiming that the stop was
not justified by a reasonable, articulable suspicion that he was engaged or about
to engage in any criminal activity or that he was the person named in the warrant.
We agree and reverse McAllister's conviction.
FACTS
On July 6, 2012 Whatcom County Sheriff Deputy Jacob Hubby randomly
checked the license plate No. ADD2958 with the Department of Licensing No. 71196-2-1/2
database. The license plate information corresponded to a 1995 Chevrolet
Lumina registered to a woman named Shakinah McAllister. The information also
listed a warrant for Bradley McAllister for driving while license suspended in the
third degree and failure to transfer title within 45 days. The information also
included McAllister's date of birth.
After he received the information and the specifics about the warrant,
Deputy Hubby followed the vehicle and noticed that the driver was male. Deputy
Hubby had not met McAllister before, but was able to confirm his identity during
the stop, either through obtaining his license or through conversation. McAllister
was then placed under arrest, and drugs were found on both his person, in a
search incident to arrest and in the car in a consensual search.
On July 12, 2012 McAllister was charged with unlawful possession of a
controlled substance, to-wit: methamphetamine, in violation of RCW
69.50.4013(1). He moved to suppress evidence of the drugs that were found on
his person pursuant to CrR 3.6, and the motion was denied. McAllister was found
guilty at a bench trial on October 28, 2013.
The case was set for sentencing on October 30, 2013 but the hearing was
continued until November 18, 2013. By that time the deputy prosecutor who
handled the case had retired. The findings of fact and conclusions of law from the
CrR 3.6 hearing were entered. McAllister was sentenced to ten days in jail and
another thirty days in a drug treatment program. Due to the original deputy prosecutor's retirement, findings offact and conclusions of law regarding McAllister's conviction were not entered until June 25, 2014. CP 51-54. No. 71196-2-1/3
DISCUSSION
McAllister argues that the stop was unlawful because Deputy Hubby did
not have reasonable articulable suspicion that he was either engaging in unlawful
conduct or that he was the person named in the warrant. He contends that
because the stop was not based on any physical description, other than gender,
or any other information that would have identified McAllister, at best, the deputy
relied only upon a hunch that the driver was the person named in the warrant.
The State argues that the specific facts justified the stop because the person
named in the warrant had the same last name as the registered owner, the
person was associated with the vehicle, and the warrant had been issued fairly
recently. Based on these facts, the State argues that there was sufficient basis
to detain the vehicle in order to identify the driver. Once that identification had
been made, the searches were lawfully conducted incident to arrest.
We review a trial court's conclusions of law at a suppression hearing de
novo. State v. Carter, 151 Wn.2d 118, 125, 85 P.3d 887 (2004). Neither party
assigns error to the trial court's written findings of fact regarding the motion to
suppress, so they are verities for the purpose of appeal. State v. Acrev, 148
Wn.2d 738, 745, 64 P.3d 594 (2003).
A warrantless search is unreasonable under both the Fourth Amendment
of the United States Constitution and article I, section 7 of the Washington
Constitution, unless the search falls within one or more specific exceptions to the
warrant requirement. State v. Ross. 141 Wn.2d 304, 312, 4 P.3d 130 (2000). The No. 71196-2-1/4
State has the burden to prove that a warrant exception applies. State v. Vrielinq,
144 Wn.2d 489, 492, 28 P.3d 762 (2001); State v. Ladson. 138 Wn.2d 343, 349-
50, 979 P.2d 833 (1999). One such exception is that an officer may briefly detain
a vehicle's driver for investigation if the circumstances satisfy the "reasonable
suspicion" standard under Terry v. Ohio. 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d
889 (1968). State v. Bliss. 153 Wn. App. 197, 204, 222 P.3d 107 (2009). To
justify a Terry stop under the state and federal constitutions, there must be some
suspicion of a particular crime connected to the particular person, rather than a
mere generalized suspicion that the person detained may have been up to no
good. State v. Martinez. 135 Wn. App. 174, 181-82, 143 P.3d 855 (2006). The
officer must have an "articulable suspicion," meaning "a substantial possibility
that criminal conduct has occurred or is about to occur." State v. Kennedy. 107
Wn.2d 1, 6, 726 P.2d 445 (1986). The officer must be able to identify specific and
articulable facts which, taken together with rational inferences from those facts,
reasonably warrant the intrusion. Bliss, 153 Wn. App. at 204 (citing Terry, 392
U.S. at 21). We determine the propriety of an investigative stop — the
reasonableness of the officer's suspicion — based on the totality of the
circumstances. State v. Snapp, 174 Wn.2d 177, 197-98, 275 P.3d 289 (2012).
At the time Deputy Hubby stopped the vehicle, he knew (1) the vehicle
was registered to a woman, Shakinah McAllister; (2) there were no warrants for
her arrest; (3) there was a warrant for a man named Bradley McAllister, who was
"associated" with the vehicle; and (4) a man was driving the vehicle. Deputy
Hubby testified that he obtained McAllister's name, gender, date of birth, and the No. 71196-2-1/5
charges, but not any other information connecting the driver of the car to the
person named in the warrant.1 The parties dispute whether the deputy's
knowledge of a recently issued warrant for a man "associated" with the vehicle,
with the same last name as the registered owner, combined with the observation
Free access — add to your briefcase to read the full text and ask questions with AI
>jk ; C-~ J-
2015 JAM 20 Fi-'J2: i
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 71196-2-1 Respondent, DIVISION ONE v.
BRADLEY D. MCALLISTER, UNPUBLISHED OPINION
Appellant. FILED: January 20, 2015
Spearman, C.J. — Bradley McAllister was charged with unlawful
possession of methamphetamine. He moved to suppress evidence discovered
during a search incident to his arrest. McAllister was stopped after a random
license plate check on the car McAllister was driving showed an arrest warrant
for a man named Bradley McAllister who was "associated" with the vehicle. The
vehicle was registered to a woman, Shakinah McAllister. Following the stop,
McAllister was arrested on the warrant and drugs were found on his person and
in the car in the search incident to arrest. He appeals, claiming that the stop was
not justified by a reasonable, articulable suspicion that he was engaged or about
to engage in any criminal activity or that he was the person named in the warrant.
We agree and reverse McAllister's conviction.
FACTS
On July 6, 2012 Whatcom County Sheriff Deputy Jacob Hubby randomly
checked the license plate No. ADD2958 with the Department of Licensing No. 71196-2-1/2
database. The license plate information corresponded to a 1995 Chevrolet
Lumina registered to a woman named Shakinah McAllister. The information also
listed a warrant for Bradley McAllister for driving while license suspended in the
third degree and failure to transfer title within 45 days. The information also
included McAllister's date of birth.
After he received the information and the specifics about the warrant,
Deputy Hubby followed the vehicle and noticed that the driver was male. Deputy
Hubby had not met McAllister before, but was able to confirm his identity during
the stop, either through obtaining his license or through conversation. McAllister
was then placed under arrest, and drugs were found on both his person, in a
search incident to arrest and in the car in a consensual search.
On July 12, 2012 McAllister was charged with unlawful possession of a
controlled substance, to-wit: methamphetamine, in violation of RCW
69.50.4013(1). He moved to suppress evidence of the drugs that were found on
his person pursuant to CrR 3.6, and the motion was denied. McAllister was found
guilty at a bench trial on October 28, 2013.
The case was set for sentencing on October 30, 2013 but the hearing was
continued until November 18, 2013. By that time the deputy prosecutor who
handled the case had retired. The findings of fact and conclusions of law from the
CrR 3.6 hearing were entered. McAllister was sentenced to ten days in jail and
another thirty days in a drug treatment program. Due to the original deputy prosecutor's retirement, findings offact and conclusions of law regarding McAllister's conviction were not entered until June 25, 2014. CP 51-54. No. 71196-2-1/3
DISCUSSION
McAllister argues that the stop was unlawful because Deputy Hubby did
not have reasonable articulable suspicion that he was either engaging in unlawful
conduct or that he was the person named in the warrant. He contends that
because the stop was not based on any physical description, other than gender,
or any other information that would have identified McAllister, at best, the deputy
relied only upon a hunch that the driver was the person named in the warrant.
The State argues that the specific facts justified the stop because the person
named in the warrant had the same last name as the registered owner, the
person was associated with the vehicle, and the warrant had been issued fairly
recently. Based on these facts, the State argues that there was sufficient basis
to detain the vehicle in order to identify the driver. Once that identification had
been made, the searches were lawfully conducted incident to arrest.
We review a trial court's conclusions of law at a suppression hearing de
novo. State v. Carter, 151 Wn.2d 118, 125, 85 P.3d 887 (2004). Neither party
assigns error to the trial court's written findings of fact regarding the motion to
suppress, so they are verities for the purpose of appeal. State v. Acrev, 148
Wn.2d 738, 745, 64 P.3d 594 (2003).
A warrantless search is unreasonable under both the Fourth Amendment
of the United States Constitution and article I, section 7 of the Washington
Constitution, unless the search falls within one or more specific exceptions to the
warrant requirement. State v. Ross. 141 Wn.2d 304, 312, 4 P.3d 130 (2000). The No. 71196-2-1/4
State has the burden to prove that a warrant exception applies. State v. Vrielinq,
144 Wn.2d 489, 492, 28 P.3d 762 (2001); State v. Ladson. 138 Wn.2d 343, 349-
50, 979 P.2d 833 (1999). One such exception is that an officer may briefly detain
a vehicle's driver for investigation if the circumstances satisfy the "reasonable
suspicion" standard under Terry v. Ohio. 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d
889 (1968). State v. Bliss. 153 Wn. App. 197, 204, 222 P.3d 107 (2009). To
justify a Terry stop under the state and federal constitutions, there must be some
suspicion of a particular crime connected to the particular person, rather than a
mere generalized suspicion that the person detained may have been up to no
good. State v. Martinez. 135 Wn. App. 174, 181-82, 143 P.3d 855 (2006). The
officer must have an "articulable suspicion," meaning "a substantial possibility
that criminal conduct has occurred or is about to occur." State v. Kennedy. 107
Wn.2d 1, 6, 726 P.2d 445 (1986). The officer must be able to identify specific and
articulable facts which, taken together with rational inferences from those facts,
reasonably warrant the intrusion. Bliss, 153 Wn. App. at 204 (citing Terry, 392
U.S. at 21). We determine the propriety of an investigative stop — the
reasonableness of the officer's suspicion — based on the totality of the
circumstances. State v. Snapp, 174 Wn.2d 177, 197-98, 275 P.3d 289 (2012).
At the time Deputy Hubby stopped the vehicle, he knew (1) the vehicle
was registered to a woman, Shakinah McAllister; (2) there were no warrants for
her arrest; (3) there was a warrant for a man named Bradley McAllister, who was
"associated" with the vehicle; and (4) a man was driving the vehicle. Deputy
Hubby testified that he obtained McAllister's name, gender, date of birth, and the No. 71196-2-1/5
charges, but not any other information connecting the driver of the car to the
person named in the warrant.1 The parties dispute whether the deputy's
knowledge of a recently issued warrant for a man "associated" with the vehicle,
with the same last name as the registered owner, combined with the observation
of a man driving the vehicle is enough to justify an investigatory stop.
Both parties rely on State v. Penfield, 106 Wn. App. 157, 160-1, 22 P.3d
293 (2001), to support their positions. In that case, we noted that an officer may
stop a vehicle registered to a person whose driver's license has been
suspended. RCW 46.20.349. A report of a registered owner's suspended license
suffices for the articulable suspicion of criminal conduct required for a brief
investigatory stop.2 Penfield, 106 Wn. App. at 160-1. It is then appropriate and
permissible for an officer to dispel his or her suspicion by identifying the driver.
State v. Lyons, 85 Wn. App. 267, 271, 932 P.2d 188 (1997). "The law
encourages officers to proceed on the reasonable suspicion that the registered
owner of a vehicle is driving, absent some manifest reason to believe otherwise."
State v. Phillips, 126 Wn. App. 584, 588, 109 P.3d 470 (2005). The suspicion is
reasonable because "'[wjhile other people may drive an owner's vehicle, it is
clear that the owner will do the vast amount of driving.'" Seattle v. Yeaqer, 67
1Deputy Hubby testified that there usually would be a physical description but he could not recall seeing it. Although the warrant information contained a description of Bradley McAllister, including his height, weight, hair and eye color, the deputy did not testify that he relied on the description when he made the decision to stop McAllister. 2We nonetheless disapproved the stop in Penfield because although the registered owner's license was suspended, she was a woman and the driver at the time of the stop was a man. Thus, once it became evident to the officer that the driver could not be the registered owner, there was no longer any lawful justification for the stop. Penfield, 106 Wn. App. at 161. No. 71196-2-1/6
Wn. App. 41, 47, 834 P.2d 73 (1992), (quoting People v. Barnes, 152 lll.App.3d
1004, 106 III.Dec. 121, 122, 505 N.E.2d 427, 428 (1987)). The State cites no
authority for giving the same weight to an inference that a person who merely is
"associated" with the vehicle, is also the current operator. Indeed, it was clear to
Deputy Hubby that the male driver was not the registered owner, Shakinah
McAllister.
Here, the only articulable suspicion of criminal activity was information that
there was a warrant for a man named Bradley McAllister associated with the
vehicle. The State did not provide any other facts that might create a suspicion
that McAllister was the person named in the warrant. There was no testimony
explaining why or how the name Bradley McAllister was associated with the
driver or why such an association would give rise to an inference that he was
likely the driver ofthe vehicle. Deputy Hubby testified that he was not familiar with McAllister before the stop and had no other reason to suspect that he was
the person named in the warrant, other than that he was male. At least one other jurisdiction has found reasonable articulable suspicion
where the license check returned information about a person other than the
registered owner, but in that case, the officer had additional information connecting the driver to the person named in the warrant. In State v. Lovd, 338 S.W.3d 863, 867 (Mo. App. W.D. 2011), the defendant claimed that the officer had no reasonable suspicion to justify stopping his vehicle because there was no
indication that he owned the vehicle or that it was registered to him. However, the
officer recognized Loyd as the driver from prior contact and the State presented No. 71196-2-1/7
evidence explaining why Loyd's name and the warrant would be "'associated'
with the vehicle or license plate." ]d. The officer's partner explained how
"warrants are assigned to the license plate numbers of vehicles in which the
individual for whom the warrant was issued has previously been stopped and
ticketed or arrested." Id. With the officer's recognition and the association with
the vehicle, the Georgia court upheld the stop.
Here, Deputy Hubby could not point to any facts that established a
substantial possibility that it was McAllister driving the vehicle, other than that he
was the same gender as a person listed in the associated warrant. This is not
sufficient to give rise to reasonable articulable suspicion of criminal activity on
McAllister's part and to justify a stop to verify his identity. We hold that it was
error to deny McAllister's motion to suppress3 and reverse his conviction.
We reverse McAllister's conviction and remand for dismissal.
WE CONCUR: >/)t^^^;CiJ,
J/1*! J
3 McAllister also assigns error to the court's failure to enter written findings of fact and conclusions of lawwith regard to McAllister's guilt and ultimate conviction for unlawful possession of methamphetamine. He argues that reversal or remand is required because the findings of fact and conclusions of law were not entered by the time he was required to file his opening brief on appeal. Findings of fact and conclusions of lawwere entered on June 25, 2014, however, without objection, and McAllister has made no showing of prejudice. We decline to reverse and remand on this basis.