Opinion
No. 30779-1-II
Filed: March 1, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No. 03-1-01842-4. Judgment or order under review. Date filed: 08/21/2003. Judge signing: Hon. Frederick Fleming.
Counsel for Appellant(s), Rebecca Wold Bouchey, Attorney at Law, PO Box 1401, Mercer Island, WA 98040-1401.
Counsel for Respondent(s), Philip Karl Sorensen, Pierce Co Pros Ofc, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2102.
Marvin Lloyd Flowers-Roscoe appeals his conviction of unlawful manufacturing of methamphetamine, claiming the evidence used in support of his conviction was illegally obtained in a pretextual traffic stop. Pro se, he claims a violation of his speedy trial rights. We affirm.
A violation of RCW 69.50.401(a)(1)(ii).
Facts
As appellant raises no issues pertaining to his trial, we developed these facts from the testimony at the suppression hearing. We disregard appellant's citations to trial testimony as the trial court was never asked to consider that testimony in rendering its decision on the motion to suppress. RAP 2.5(a).
On April 20, 2003, shortly after midnight, Jeffrey Bennett, a Bonney Lake Patrol Officer, saw a blue Mazda 323 hatchback turn onto westbound Highway 410. While following the hatchback, Bennett's headlights illuminated the interior of the Mazda and showed that the windshield had extensive and visible cracking. He followed the Mazda to the 18400 block and then signaled it to pull over.
The driver, who did not have a license, registration, or proof of insurance, identified himself as Marvin Flowers-Roscoe. A computer check revealed that Flowers-Roscoe was driving on a suspended license and that one passenger, Jeffrey Alexander, had two outstanding arrest warrants.
Officer Alfano arrived to assist Bennett and they arrested Flowers-Roscoe and Alexander. Bennett discovered a large blue shipping container in the back seat that contained what he suspected was a clandestine methamphetamine laboratory. Bennett and Alfano then impounded the car, arrested Flowers-Roscoe, Alexander, and another passenger, Jason Follis, for unlawful methamphetamine manufacturing. When Bennett showed Flowers-Roscoe what he had found, Flowers-Roscoe responded, `yeah, it's in there and I guess since I'm driving, it's mine.' Report of Proceedings (RP) at 18.
The State charged Flowers-Roscoe with unlawful manufacture of a controlled substance. Flowers-Roscoe moved to suppress the evidence seized and the inculpatory statement he made to Bennett. Dickie Picolet, the Mazda's owner, testified that she lent the car to Flowers-Roscoe that evening, that while there is a crack in the windshield, it does not obstruct the driver's view, and that, at night, it does not affect the view at all. She testified that she had driven for several months with the cracked windshield and that after Flowers-Roscoe's arrest, Bennett spoke to her but never gave her a citation for a broken windshield. A jury found Flowers-Roscoe guilty following trial and the court imposed a standard range 72-month sentence.
Analysis I. Pretextual Stop
Flowers-Roscoe argues the trial court should have suppressed the evidence because Bennett's stop was pretextual and his stated reason was unreasonable and improbable in view of the total circumstances. We review a trial court's denial of a motion to suppress by examining whether substantial evidence supports the challenged findings and whether those findings support the trial court's conclusions of law. State v. Teran, 71 Wn. App. 668, 671, 862 P.2d 137 (1993) (citing State v. Hagen, 55 Wn. App. 494, 498, 781 P.2d 892 (1989)). Flowers-Roscoe assigns error to disputed findings of fact one and four, which state:
1. While Officer Bennett was on patrol, he noticed the Mazda preparing to turn onto the highway. Officer Bennett got behind the Mazda and saw a crack in the front windshield, which he believed was likely to obstruct the driver's view. This was the reason he stopped the vehicle.
. . . .
4. In the officer's words, as he drove behind the defendant's vehicle, the crack in the windshield looked like a `glow stick' when light reflected off of it, causing obstruction and distractions for the driver.
Clerk's Papers (CP) at 10.
As these findings echo Bennett's testimony, substantial evidence supports them. That Picolet's testimony differed as to whether the crack obstructed her view, simply raises a credibility determination for the fact finder. Because substantial evidence supports these findings, they are verities on appeal. RAP 10.3(a)(5); State v. Stenson, 132 Wn.2d 668, 697, 940 P.2d 1239 (1997) (citing State v. Gentry, 125 Wn.2d 570, 605, 888 P.2d 1105 (1995)).
Flowers-Roscoe also asserts that the stop was clearly pretextual and Bennett lacked probable cause to stop him. We disagree. `Probable cause exists where the facts and circumstances within the arresting officer's knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in a belief that an offense has been or is being committed.' State v. Gluck, 83 Wn.2d 424, 426-27, 518 P.2d 703 (1974) (citations omitted); see also State v. Herzog, 73 Wn. App. 34, 53, 867 P.2d 648 (1994). It was undisputed that the vehicle had a cracked windshield and in Bennett's view, it justified the stop because it obstructed the driver's vision and thus made the vehicle unsafe to drive. State law provides that operating a vehicle with faulty equipment is a traffic infraction. RCW 46.32.060; RCW 46.37.010(1); RCW 46.37.410(1). When Bennett saw the extensively cracked windshield, he was entitled to stop Flower-Roscoe, further investigate, and issue a citation if warranted. See RCW 46.61.021(2).
RCW 46.32.060 provides:
It shall be unlawful for any person to operate or move, or for any owner to cause or permit to be operated or moved upon any public highway, any vehicle or combination of vehicles, which is not at all times equipped in the manner required by this title, or the equipment of which is not in a proper condition and adjustment as required by this title or rules adopted by the chief of the Washington state patrol.
Any vehicle operating upon the public highways of this state and at any time found to be defective in equipment in such a manner that it may be considered unsafe shall be an unlawful vehicle and may be prevented from further operation until such equipment defect is corrected and any peace officer is empowered to impound such vehicle until the same has been placed in a condition satisfactory to vehicle inspection. The necessary cost of impounding any such unlawful vehicle and any cost for the storage and keeping thereof shall be paid by the owner thereof. The impounding of any such vehicle shall be in addition to any penalties for such unlawful operation.
The provisions of this section shall not be construed to prevent the operation of any such defective vehicle to a place for correction of equipment defect in the manner directed by any peace officer or representative of the state patrol.
RCW 46.37.010(1) provides:
(1) It is a traffic infraction for any person to drive or move or for the owner to cause or knowingly permit to be driven or moved on any highway any vehicle or combination of vehicles which is in such unsafe condition as to endanger any person, or which does not contain those parts or is not at all times equipped with such lamps and other equipment in proper condition and adjustment as required in this chapter or in regulations issued by the chief of the Washington state patrol, or which is equipped in any manner in violation of this chapter or the state patrol's regulations, or for any person to do any act forbidden or fail to perform any act required under this chapter or the state patrol's regulations.
RCW 46.37.410(1) provides, in part:
(1) All motor vehicles operated on the public highways of this state shall be equipped with a front windshield manufactured of safety glazing materials for use in motor vehicles in accordance with RCW 46.37.430, except, however, on such vehicles not so equipped or where windshields are not in use, the operators of such vehicles shall wear glasses, goggles, or face shields pursuant to RCW 46.37.530(1)(b).
RCW 46.61.021(2) provides:
Whenever any person is stopped for a traffic infraction, the officer may detain that person for a reasonable period of time necessary to identify the person, check for outstanding warrants, check the status of the person's license, insurance identification card, and the vehicle's registration, and complete and issue a notice of traffic infraction.
Here, the findings of fact and underlying testimony establish that Bennett saw a cracked windshield, believed that it posed a safety hazard and, thus, had an objective basis for stopping Flowers-Roscoe to investigate. Once he learned that Flowers-Roscoe was driving with a suspended license, he had probable cause for a custodial arrest and grounds to search incident to a valid arrest.
An officer engages in a pretextual traffic stop when he stops a citizen, not to enforce the traffic code, but to circumvent the warrant requirement and to investigate some other matter. State v. Ladson, 138 Wn.2d 343, 349, 979 P.2d 833 (1999). When determining whether a given stop is pretextual, we consider all the circumstances, including both the officer's subjective intent as well as the objective reasonableness of the officer's behavior. Ladson, 138 Wn.2d at 358-59 (citing State v. Angelos, 86 Wn. App. 253, 256, 936 P.2d 52 (1997)). Where enforcement of the traffic code is the reason for the traffic stop, the stop is not pretextual. See State v. Hoang, 101 Wn. App. 732, 742, 6 P.3d 602 (2000) (whether the officer issued a traffic citation is a factor when determining the officer's subjective intent, but it is not dispositive proof of pretext).
Despite the findings of fact, Flowers-Roscoe argues that Bennett began pursuing his vehicle before knowing about the cracked windshield, recognized the car as one in a report, and recognized one of the passengers. And he adds that seeing a cracked windshield from two car lengths behind is implausible, and Bennett never issued him a citation. Under these circumstances, he claims that Bennett's justification for the stop was unreasonable and pretextual.
In Ladson, supra, the officers admitted they stopped the vehicle to investigate suspicions that the occupants were involved in narcotics trafficking. They followed the vehicle for several blocks, looking for a reason to stop the car. The officers eventually pulled the vehicle over for having expired license tabs. Ladson, 138 Wn.2d at 346. Rejecting the State's claim that the court should consider only the objective reason for the stop, the court also examined the officers' subjective reasons, which were not to enforce the traffic code but rather to conduct a criminal investigation. The court concluded that the officers stopped the vehicle on an unconstitutional pretext and suppressed the seized evidence.
In State v. DeSantiago, 97 Wn. App. 446, 983 P.2d 1173 (1999), an officer watched an apartment complex known for narcotics. He saw the defendant enter the building and leave less than five minutes later. DeSantiago, 97 Wn. App. at 448. The officer then followed the defendant's vehicle for several blocks, looking for a reason to stop it. DeSantiago, 97 Wn. App. at 448-49, 452. The officer eventually stopped the defendant for an improper left-hand turn. DeSantiago, 97 Wn. App. at 449. The court reversed the defendant's convictions for possession of methamphetamine and unlawful possession of a firearm, concluding that the officer `was clearly `looking for a basis to stop the vehicle' and subjectively intended to engage in a pretextual stop.' DeSantiago, 97 Wn. App. at 452-53 (quoting Ladson, 138 Wn.2d at 358-59).
Here, Bennett saw the Mazda before it entered Highway 410; he pulled over to the side of the road, allowing the Mazda to pass him so that he could follow it; he then followed it until he could find a safe place to pull it over. Contrary to Flowers-Roscoe's assertion, Bennett did not testify at the suppression hearing that he recognized any of the occupants before stopping the car. The record does not show that Bennett had any suspicions about the vehicle or its occupants other than the vehicle was in a report. In fact, Bennett testified that he had no intent of stopping the vehicle until he saw the cracked windshield and that he had no other reason to stop it. Bennett also testified that over the years he has stopped `dozens and dozens of cars' with cracked windshields, that he gives some a warning, others he gives a citation. RP at 29. That evening, Bennett was performing routine traffic enforcement, not a narcotics investigation. The trial court considered his testimony and counsel's arguments and found the testimony credible. Under these circumstances, we agree with the trial court's conclusion that the stop was not pretextual.
II. Speedy Trial
In his pro se statement of additional grounds, Flowers-Roscoe claims that the charge should have been dismissed because he was tried on day 93 of the speedy trial period, he was incarcerated the entire time, and he never waived his right to a speedy trial.
The record before us is insufficient to address this claim on its merits. The record merely shows that the prosecutor filed the information on April 21, 2003, and that trial commenced on July 23, 2003. It does not show what continuances, if any, the trial court ordered. While appellate counsel mailed several copies of trial continuances to this court, the clerk rejected them because counsel never designated these documents as RAP 9.6 requires. Thus, they are not part of the appellate record and we cannot consider them. RAP 9.1(a).
We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
Morgan, A.C.J. and Hunt, J., concur.