State v. Olsson

895 P.2d 867, 78 Wash. App. 202
CourtCourt of Appeals of Washington
DecidedJune 15, 1995
DocketNo. 13700-7-III
StatusPublished

This text of 895 P.2d 867 (State v. Olsson) 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. Olsson, 895 P.2d 867, 78 Wash. App. 202 (Wash. Ct. App. 1995).

Opinion

Thompson, C.J.

James E. Olsson appeals his conviction for possession of a controlled substance. He contends the court erred when it denied his motion to suppress the cocaine a deputy sheriff seized from him after stopping his vehicle for a defective exhaust. He argues RCW 46.37.390, which requires motor vehicles to be equipped with a muffler which is sufficient "to prevent excessive or unusual noise”, is unconstitutionally vague. We affirm.

On March 15, 1992, Lincoln County Sheriffs Deputy Kelly Hembach was parked by the side of the road on Highway 28 when Mr. Olsson drove by in his black Cá-maro. Deputy Hembach heard "excessively loud noise” emanating from the Camaro’s vehicle exhaust, a violation of RCW 46.37.390. He stated he is familiar with the vehicle type and could tell the noise was more than would have come from an unaltered factory vehicle. The officer also observed the Camaro’s muffler and the exhaust system appeared to have less clearance in relation to the roadway than is required by RCW 46.61.680.1 He therefore stopped Mr. Olsson for the vehicle’s excessive noise and for the equipment violation.

Upon being stopped, Mr. Olsson told Deputy Hembach he was carrying a knife. He produced the knife and gave it to the deputy. Deputy Hembach stated Mr. Olsson appeared to have "a heightened awareness to his surroundings. His pupils would not react and were fixed at mid-range. He had glassy eyes with redness around the membrane”. Deputy Hembach suspected Mr. Olsson was [205]*205under the influence of drugs. Then, during a pat-down search, he felt something in Mr. Olsson’s pocket, which Mr. Olsson told him was another knife. While retrieving the "knife”, Deputy Hembach found a substance later identified as cocaine. He arrested Mr. Olsson for driving a motor vehicle while under the influence of drugs and for possession of cocaine.

Mr. Olsson moved to suppress the evidence of cocaine on the basis the officer stopped and searched him without probable cause. The court denied the motion, concluding Deputy Hembach properly stopped Mr. Olsson’s vehicle for violation of either ROW 46.37.390 or ROW 46.61.680. The court also concluded the deputy’s subsequent pat-down of Mr. Olsson was appropriate, given his reasonable suspicion Mr. Olsson was under the influence of drugs and his reasonable concern Mr. Olsson was carrying another weapon. Mr. Olsson stipulated to the facts as to his possession of cocaine for purposes of trial. The court subsequently convicted him of possession of a controlled substance.

First, Mr. Olsson contends ROW 46.37.390 is unconstitutionally vague, and, therefore, provides an inadequate basis to justify a stop of his vehicle. Under ROW 46.37.390(1), "Every motor vehicle shall at all times be equipped with a muffler in good working order and in constant operation to prevent excessive or unusual noise . . .”. Mr. Olsson argues the phrase "excessive or unusual noise” does not provide a standard to measure the amount of noise an exhaust system may emit and still comply with the statute. A statute is unconstitutional if it fails to define an offense so that ordinary people understand what it proscribes, or if it does not provide ascertainable standards to protect against arbitrary enforcement. Spokane v. Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990).

Other jurisdictions have upheld statutes similar to RCW 46.37.390(1) against challenges they are void for vagueness. Smith v. Peterson, 131 Cal. App. 2d 241, 280 P.2d 522, 49 A.L.R.2d 1194 (1955); State v. Lara, 18 Kan. App. [206]*2062d 386, 853 P.2d 1168 (1993); People v. Byron, 17 N.Y.2d 64, 215 N.E.2d 345, 268 N.Y.S.2d 24 (1966); People v. Merry, 12 Misc. 2d 20, 178 N.Y.S.2d 454 (1958); State v. Beyer, 441 N.W.2d 919 (N.D. 1989). See also L.I. Reiser, Annotation, Public Regulation Requiring Mufflers or Similar Noise-Preventing Devices on Motor Vehicles, Aircrafts, or Boats, 49 A.L.R.2d 1202 (1956).

These cases cite various rationales for their holdings. In Beyer, at 922, the court referenced the dictionary definitions of "unusual” and "excessive”, and held:

We believe that the usual noise emitted from a vehicle which is equipped with a proper muffler and exhaust system is within the common knowledge of drivers. When a vehicle is emitting noise which is inordinate, or beyond that which is proper or usual, the reasonable driver should be fully cognizant of the vehicle’s condition and of the possible violation of the law by driving such a vehicle.

Similarly, Smith, held at page 249:

Motor vehicles have been used so long and have become so common, and mufflers so uniformly used to minimize the noise from their exhaust that what is usual has become a matter of common knowledge, and anything in excess of that is excessive and unusual, and usually capable of ascertainment as such.

Beyer, at 922, also addressed the contention the statute did not provide standards to protect against arbitrary enforcement:

The meaning of these adjectives is well within the common understanding of not only drivers, but also police officers. To adjudge excessive or unusual noise, officers must rely on their sense of hearing just as they must rely on their sense of sight for speeding violations or their sense of smell for DUI violations.

The court quoted State v. Cobbs, 411 So. 2d 212 (Fla. Dist. Ct. App. 1982):

We see no greater potential for abuse in this case than in any case where an officer’s visual observations of a vehicle’s progress lead him to the founded suspicion that the driver of a ve-[207]*207hide is committing a traffic offense. ... So long as there exists a basis from which courts can determine that the stop was not arbitrary . . . the fact that the basis comes from an officer’s testimony about what his senses revealed does not make the stop any less justified.

Beyer, at 922.

We agree with the foregoing opinions that what is loud and excessive noise for a vehicle is a matter of common knowledge and is as capable of ascertainment as other circumstances in which law enforcement officers must depend upon their senses to determine whether a violation of law has occurred. RCW 46.37.390 is not void for vagueness. The statute is specific enough that persons of reasonable understanding are not required to guess at its meaning.2

In addition, Mr.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State Of Washington, V Jason Graham
Court of Appeals of Washington, 2026

Cite This Page — Counsel Stack

Bluebook (online)
895 P.2d 867, 78 Wash. App. 202, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-olsson-washctapp-1995.