State v. Allen

138 Wash. App. 463

Opinions

¶1 Ryan Weston Allen appeals his conviction of one count of unlawful possession of a controlled substance, a felony, and one count of violation of a no-contact order, a gross misdemeanor. He argues that (1) the trial court erred by failing to suppress illegally obtained evidence and (2) he invalidly waived his right to a jury trial. Because the trial court erred in denying Allen’s motion to suppress, we reverse and remand.

Houghton, C.J.

FACTS

¶2 On the night of June 9, 2005, Officer Mike Lowrey of the Centraba Police Department stopped a car for failure to have a working license plate light. Peggy Allen drove the car and Allen rode as a passenger. Lowrey asked Peggy¹ for her driver’s license and vehicle registration, which she provided.

¶3 Lowrey could see Allen but did not recognize him. Lowrey returned to his patrol car and checked Peggy’s information. He learned that “she was ... a [petitioner] in a protection order.” Report of Proceedings (Nov. 18, 2005) at 16. Lowrey also learned that the no-contact order applied to Allen. Although Lowrey assumed the order named a male, he later admitted that he did not know the gender or description of the party restrained.

¶4 When he returned to the car, Lowrey asked Allen for identification. At the pretrial suppression hearing, Lowrey indicated, and the State argued, that he asked Allen for identification because he was investigating a potential violation of the no-contact order, the reasonable suspicion being that the passenger was a male and that the respondent to the no-contact order was presumably a male.²

¶5 Allen replied that he did not have identification, and Lowrey then asked Allen’s name. Both Peggy and Allen said that Allen’s name was Ben Haney.³ Lowrey also obtained a birth date and the last four digits of a Social Security number from Allen.

¶6 With this information, Lowrey returned to his patrol car and checked the name Ben Haney and the date of birth in the Oregon and Washington Computer Aided Dispatch (CAD) databases. The computer disclosed no record for that name and date of birth.

¶7 While waiting for a return on the information, Lowrey saw the passenger reach under the passenger seat. At this point, Lowrey returned to the vehicle driver’s side and asked Peggy to leave the car, which she did. The two walked to the rear of the vehicle.

¶8 Lowrey told Peggy that he knew she had given a false name for the passenger and asked why. She said that there was a valid no-contact order against the passenger in the car. Lowrey asked Peggy for the passenger’s name, and she stated that Lowrey already knew the name. When Lowrey asked again, she named Allen.

¶9 After confirming the validity of the no-contact order, another officer placed Allen under arrest and put him into a patrol car. A search of the car incident to arrest revealed a bag of methamphetamine under the front passenger seat.

¶10 The State charged Allen with one count of unlawful possession of a controlled substance, a felony, and one count of violation of a no-contact order, a gross misdemeanor. On November 18, the trial court held a pretrial CrR 3.6 hearing to determine what evidence, if any, should be suppressed. The trial court granted Allen’s motion to suppress in part, ruling that (1) Lowrey lacked reasonable suspicion to investigate whether Allen was the restrained party in a no-contact order; (2) consequently, Lowrey’s request for identification from Allen constituted an unlawful seizure under article I, section 7 of the Washington State Constitution; (3) Lowrey’s later questioning of Peggy and her identification became an independent source of Allen’s identification; (4) Allen did not have standing to assert Peggy’s constitutional rights or violation thereof; and (5) excepting all evidence obtained directly or derivatively from Allen’s unlawful seizure, Lowrey had probable cause to arrest Allen for violation of a no-contact order.

¶11 During the trial court’s oral ruling on the matter, it noted that it found Lowrey’s questioning of Peggy did not exploit the false name Lowrey obtained from Allen. Rather, the trial court reasoned that Lowrey was going to return to Peggy to issue a citation or release her; therefore, the inquiry formed an independent source of the identity evidence.

¶12 Allen waived his right to a jury trial. He stipulated to the facts of the case, and the trial court found him guilty as charged. He appeals.

ANALYSIS

¶13 Allen contends that the trial court erred in denying his motion to suppress Peggy’s identification of him. He asserts that when Lowrey detained Peggy by asking her to accompany him to the rear of the vehicle, Allen was also unlawfully detained, collaterally. Therefore, any information derived from that unlawful seizure, namely, Peggy’s identification of Allen, must be excluded. Allen also asserts that Peggy furthered his unlawful seizure and, therefore, he argues, derivative evidence obtained through it must be excluded under the exclusionary rule as a fruit of the poisonous tree.

¶14 The trial court concluded that Lowrey lacked reasonable suspicion to seize Allen and investigate whether he was the restrained party in the no-contact order. But it also found that the identifying information obtained from Peggy formed an independent source of information and, therefore, need not be suppressed.

¶15 Allen alternatively argues that Lowrey unlawfully detained Peggy because he did not have reasonable suspicion to seize her beyond the scope of the initial traffic violation and when he began questioning her about the identity of her passenger, he exceeded the scope of his lawful detention.

¶16 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). We review challenged findings of fact for substantial evidence, that is, enough evidence to persuade a fair-minded, rational person of the truth of the finding. State v. Vickers, 148 Wn.2d 91, 116, 59 P.3d 58 (2002). We treat unchallenged findings as verities on appeal. State v. Acrey, 148 Wn.2d 738, 745, 64 P.3d 594 (2003). The findings must, in turn, support the conclusions of law. Vickers, 148 Wn.2d at 116.

Independent Source Rule

¶17 Article I, section 7 of the Washington Constitution provides that “[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.” This provision prohibits law enforcement officers from requesting identification from passengers for investigative purposes unless there is an independent basis that justifies the request. State v. Rankin, 151 Wn.2d 689, 699, 92 P.3d 202 (2004). An “articulable suspicion of criminal activity” is an “independent basis.” Rankin, 151 Wn.2d at 699. “[A] mere request for identification from a passenger for investigatory purposes constitutes a seizure unless there is a reasonable basis for the inquiry.” Rankin, 151 Wn.2d at 697. Generally, evidence obtained in violation of article I, section 7 must be suppressed.⁴ See Rankin, 151 Wn.2d at 699.

¶18 “When an unconstitutional search or seizure occurs, all subsequently uncovered evidence becomes fruit of the poisonous tree and must be suppressed.” State v. Ladson, 138 Wn.2d 343, 359, 979 P.2d 833 (1999). But evidence need not be suppressed under the fruit of the poisonous tree doctrine if obtained from an independent source. See, e.g., State v. Early, 36 Wn. App. 215, 221-22, 674 P.2d 179 (1983).

¶19 Under the independent source exception to the exclusionary rule, evidence tainted by unlawful government actions is not subject to exclusion, provided it is ultimately obtained under a valid warrant or other lawful means independent of the unlawful action. State v. Gaines, 154 Wn.2d 711, 718, 116 P.3d 993 (2005). Thus, the relevant inquiry becomes whether the identifying information Lowrey obtained from Peggy was a lawful, independent source of evidence. This requires us to determine whether Lowrey’s later questioning of Peggy was a lawful seizure.⁵

Unlawful Seizure of Peggy

¶20 The trial court did not enter a conclusion of law regarding whether Peggy was unlawfully seized when Lowrey asked her to leave her car, asked her to come to the rear of the vehicle, and questioned her about the passenger’s identity. Therefore, taking the unchallenged facts as verities on appeal, we must determine whether her detention was lawful and, if not, any evidence obtained therefrom cannot qualify as a “lawful means independent of the unlawful action.” Gaines, 154 Wn.2d at 718 (emphasis added).

¶21 A seizure occurs when a reasonable individual would no longer feel free to terminate the contact and simply walk away. State v. Thorn, 129 Wn.2d 347, 352, 917 P.2d 108 (1996). To justify a warrantless seizure, the police must be able to point to specific and articulable facts giving rise to a reasonable suspicion that the person stopped is engaged in criminal activity. State v. Mendez, 137 Wn.2d 208, 223, 970 P.2d 722 (1999). A stop based on a traffic infraction is valid only if the officer had, from the beginning, a reasonable, articulable suspicion that the infraction had occurred and the stop was reasonably related in scope to the circumstances that justified the interference in the first place. Ladson, 138 Wn.2d at 359.

¶22 Here, Lowrey had a reasonable, articulable basis to stop the vehicle for a traffic infraction: the nonworking license plate light. In order for the inquiry of Peggy to be lawful, either (1) it must have been within the scope of the original traffic stop or (2) Lowrey must have acquired lawful, reasonable suspicion to further investigate her.

¶23 First, it cannot be said that Lowrey’s later questioning of Peggy was within the scope of the original traffic violation. The State argues that it was within that scope because Lowrey would have had to return to her to either issue the traffic citation or tell her she was free to go. But this argument stretches logic. Asking Peggy to exit her car and accompany Lowrey to the rear of the vehicle, and asking twice to know the name of the passenger, goes well beyond a routine investigation of a traffic violation. This is essentially the fishing expedition that the exclusionary rule seeks to prohibit. Former RCW 46.64.015 (2004); State v. Reding, 119 Wn.2d 685, 835 P.2d 1019 (1992).

¶24 Second, Lowrey did not have a lawful basis for a reasonable suspicion that the passenger was Allen when he asked Peggy to come to the rear of the vehicle. At this point, Lowrey had a reasonable suspicion because the false name Ben Haney did not register on the CAD databases. But this evidence was derived from Allen’s unlawful seizure and inquiry and, therefore, it must be excised from the review of Lowrey’s reasonable suspicion.⁶ Without knowledge that the passenger provided a false name, Lowrey did not possess reasonable articulable facts to believe that the no-contact order referred to the passenger. For these reasons, the identifying information Lowrey obtained from Peggy does not qualify as a lawful, independent source of evidence that gave rise to the probable cause needed to arrest Allen.⁷

Allen’s Arrest and Search Incident to Arrest

¶25 For Allen’s arrest to be valid, the evidence must have supported a finding of probable cause to arrest him for violation of the no-contact order based only on the lawfully obtained evidence. Here, Lowrey lawfully (1) stopped the vehicle for a traffic offense, (2) obtained Peggy’s driver’s license and vehicle registration, (3) learned that she was the petitioner in a no-contact order, (4) observed that the passenger of the car was male, and (5) observed the passenger reach under the front passenger seat. This evidence does not give rise to probable cause to arrest Allen.

¶26 Police may conduct a warrantless search incident to a valid felony arrest, but this exception to the warrant requirement applies only if the arrest is valid; otherwise, the evidence obtained must be suppressed as fruits of the poisonous tree. Ladson, 138 Wn.2d at 359; see State v. Parker, 139 Wn.2d 486, 496-97, 987 P.2d 73 (1999). Lowrey did not have a lawful basis for probable cause to arrest Allen; therefore, the arrest was illegal and any evidence obtained via a search incident to the arrest must be suppressed.

¶27 We reverse Allen’s convictions and remand with instructions for the court to suppress the evidence.⁸

Armstrong, J., concurs.

Footnotes

1

For clarity, we use Peggy Allen’s first name.

2

During the suppression hearing, Lowrey testified that he assumed the respondent to the no-contact order was male because of the name Ryan, but he admitted on cross-examination that the name Ryan could also be a female name.

3

Lowrey testified that while questioning Allen, Peggy kept interjecting answers to his questions until Lowrey asked her to be quiet.

4

Although the dissent correctly notes that our Supreme Court has not yet addressed the legality of a police officer questioning a driver about a passenger after a traffic stop, the Rankin holding provides guidance. In Rankin, “a police officer asked a passenger for identification for the sole purpose of conducting a criminal investigation, notwithstanding the fact that the officer lacked any articulable suspicion of criminal activity.” 151 Wn.2d at 699. The notion that an officer could question a driver in a traffic stop about a passenger for the sole purpose of conducting a criminal investigation with no articulable suspicion of criminal activity rims contrary to the Rankin holding that protects a passenger’s private affairs under article I, section 7. Without this protection, police could have a back door route into conducting a criminal investigation that Rankin prohibits.

5

We believe this interpretation of the independent source rule accords with Gaines. Under Gaines, if the police did not have “lawful means” of obtaining Allen’s name, the trial court should not have admitted this evidence under the independent source rule, regardless of any standing analysis. 154 Wn.2d at 718.

6

We agree with the trial court’s conclusion that Lowrey’s initial inquiry of Allen was an unlawful seizure. The State did not challenge this finding.

7

Because we hold the trial court should have suppressed the evidence under the derivative exclusionary rule, we do not address Allen’s argument that he has automatic standing to raise Peggy’s constitutional rights.

8

Because we reverse and remand, we do not address Allen’s argument on jury trial waiver.