State v. Lemus

103 Wash. App. 94
CourtCourt of Appeals of Washington
DecidedOctober 26, 2000
DocketNo. 18861-2-III
StatusPublished
Cited by12 cases

This text of 103 Wash. App. 94 (State v. Lemus) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Lemus, 103 Wash. App. 94 (Wash. Ct. App. 2000).

Opinion

Brown, A.C.J.

Pedro Lemus was convicted of possessing cocaine discovered in his car and on his person during a later strip search. The critical evidence was collected after a routine traffic stop for improper lane change and a search of his car without a warrant. Because the trial court erred deciding the evidence was properly seized in a plain view search or search incident to arrest, we reverse.

FACTS

Officer Richard Washburn saw Mr. Lemus make what the officer believed to be an improper lane change on a city street in Othello. Officer Washburn stopped Mr. Lemus’s [97]*97vehicle and asked for backup, a standard procedure for nighttime traffic stops. Mr. Lemus told Officer Washburn he did not have insurance. Officer Washburn decided not to charge the improper lane change, but returned to his patrol car to prepare a Notice of Infraction (NOI) for no insurance.

Officer Troy Kelly arrived as backup. Officer Washburn advised Officer Kelly that Mr. Lemus was a known drug trafficker based upon prior contacts with the Othello Police Department. Officer Washburn approached Mr. Lemus again from the driver’s side of the car while Officer Kelly approached from the passenger side. To ensure officer safety, Officer Kelly illuminated the passenger compartment of the vehicle with his flashlight. Officer Kelly particularly focused his attention on Mr. Lemus’s hands. Officer Washburn noticed Mr. Lemus appeared nervous, which the officer felt was inconsistent with his prior encounters with Mr. Lemus.

Officer Kelly observed that Mr. Lemus kept his right hand motionless on his pant leg. Officer Kelly noticed that when Mr. Lemus moved his right hand to accept a pen from Officer Washburn to sign the NOI, there was a white powdery substance on Mr. Lemus’s pant leg that had been previously concealed from view by Mr. Lemus’s right hand and arm. Officer Kelly immediately concluded the powder was “very possibly” cocaine. Officer Kelly told Officer Washburn about the powdery substance. Officer Washburn asked Mr. Lemus what the substance was and told him not to move his hands. Mr. Lemus responded by brushing the substance off his pant leg. Officer Washburn testified that based upon his training, the powder “resembled” cocaine.

When Officer Washburn returned to Mr. Lemus’s car with the infraction notice he detected the odor of intoxicants on Mr. Lemus’s breath that he had not initially noticed due to the smell of cigarette smoke. After learning of the powdery substance, Officer Washburn asked Mr. Lemus to exit the vehicle to perform field sobriety tests (FSTs).

During the FSTs, passed successfully by Mr. Lemus, Officer Voss arrived with the field testing kit and without a [98]*98warrant removed a sample of the white powdery substance from Mr. Lemus’s vehicle. It field-tested positive for cocaine. Officer Washburn then arrested Mr. Lemus. Also during the FSTs, Officer Washburn noticed a bulge in Mr. Lemus’s left front pants pocket. Officer Washburn then conducted a pat-down search. During the search, Officer Washburn felt a pointed object, which he thought might be a weapon. The object turned out to be a small scale of the type used by drug dealers, but there was no evidence the scale had been used. Later, at the station during a strip search, approximately 13.7 grams of cocaine was discovered in Mr. Lemus’s underwear.

Mr. Lemus’s CrR 3.6 motion to suppress the evidence seized from the car and Mr. Lemus’s person was denied. Mr. Lemus was found guilty of possessing cocaine at a stipulated bench trial based upon the CrR 3.6 hearing findings. He was given a standard range sentence before he filed this appeal.

ANALYSIS

A. Lane Change

The issue is whether the trial court erred when making findings of fact and entering conclusions of law deciding Mr. Lemus was validly stopped for failure to signal a lane change in violation of RCW 46.61.305.

Mr. Lemus assigns error to Findings of Fact 4A and B, which state:

A. Officer Washburn observed the vehicle begin to move toward the inside SB lane. The turn signal was activated as the left front tire began to cross the lane divider.
B. Based on his observations, Officer Washburn testified that he had probable cause to believe the driver of the vehicle had committed a violation of RCW 46.61.305.

The standard of review is the same throughout this opinion. This court reviews challenged findings of fact for [99]*99substantial evidence. State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994). Evidence is substantial if it is sufficient to persuade a fair-minded, rational person of the truth of the matter asserted. Hill, 123 Wn.2d at 644. All of the other findings in this case are unchallenged and thus verities on appeal. Hill, 123 Wn.2d at 644. This court reviews the trial court’s conclusions of law de novo. State v. Armenta, 134 Wn.2d 1, 9, 948 P.2d 1280 (1997).

Officer Washburn testified on direct that Mr. Lemus changed lanes before he signaled. On cross, Officer Washburn agreed that his written report described Mr. Lemus’s action as signaling “as the left front tire crossed the lane line.” Officer Washburn elaborated by stating the left front of Mr. Lemus’s vehicle was “across the lane line.” Officer Washburn stated his belief that Mr. Lemus had committed “the traffic infraction of failing to signal properly prior to changing a lane.” This testimony is sufficient to persuade a fair-minded person that Mr. Lemus crossed the lane line before he signaled.

Conclusion of Law 2 states: “The initial traffic stop for failing to signal intent to change lanes was valid.” RCW 46.61.305 partly states:

(1) No person shall turn a vehicle or move right or left upon a roadway unless and until such movement can be made with reasonable safety nor without giving an appropriate signal in the manner hereinafter provided.
(2) A signal of intention to move or move right or left when required shall be given continuously during not less than the last one hundred feet traveled by the vehicle before turning.

Absent ambiguity, we rely solely on the language of the statute. State v. Azpitarte, 140 Wn.2d 138, 142, 995 P.2d 31 (2000). Paraphrased in the affirmative, RCW 46.61.305(1) plainly means that the driver must make a lane change safely and with an appropriate signal. RCW 46.61.305(2) clearly requires a signal for at least 100 feet before the lane change. Given the findings, and the clear meaning of RCW 46.61.305

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Cite This Page — Counsel Stack

Bluebook (online)
103 Wash. App. 94, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lemus-washctapp-2000.