State v. Lee

7 Wash.App.2d 692

435 P.3d 847

STATE of Washington, Respondent,

v.Carmen Rose LEE, Appellant.

No. 77038-1-I

Court of Appeals of Washington, Division 1.

FILED: February 25, 2019

Kevin Andrew March, Nielsen Broman Koch PLLC, Attorney at Law, 1908 E. Madison St., Seattle, WA, 98122, Counsel for Appellant

Prosecuting Attorney Snohomish, Snohomish County Prosecuting Attorney, J Scott Halloran, Snohomish Co. Prosecuting Atty-Criminal, 3000 Rockefeller Ave. M/s 504, Everett, WA, 98201, Counsel for Respondent

PUBLISHED OPINION

Verellen, J.¶ 1 When analyzing whether a passenger’s voluntary consent to search her purse has been vitiated by an unlawful seizure, the starting point is the traffic stop that culminated in the search. If police validly stop a car for a traffic infraction, the driver and passengers are lawfully seized. Generally, the seizure continues and remains reasonable for the duration of the traffic stop, ending when police no longer need to control the scene and tell the passengers they are free to leave. Under article I, section 7 of the Washington Constitution, the scope and duration of a lawful traffic stop are governed by the rationale of Terry v. Ohio,¹ depend on the totality of the circumstances, and may expand as the circumstances change.

¶ 2 Under the totality of the circumstances, the police did not exceed reasonable scope and duration limitations merely by asking a lawfully seized passenger for consent to search a purse she left inside the car and making a single mention of her prior drug conviction. Carmen Lee’s voluntary consent to search her purse was not vitiated by an unlawful seizure.

¶ 3 We affirm Lee’s conviction for possession of controlled substances with intent to deliver.

FACTS

¶ 4 On July 7, 2015, Michael Peterman was driving a car, and Lee was the front seat passenger. Detective Garry Tilleson initiated a traffic stop for two traffic infractions. Detective Tilleson asked Peterman for his identification, learned his license was suspended, and arrested him for first degree driving while license suspended or revoked. Peterman consented to a search of the car.

¶ 5 Detective Tilleson told Lee to step out to facilitate his search of the car. She left her purse inside the car. Detective Tilleson ran Lee’s identification information to determine if she had a driver’s license so she could drive the car if it was not impounded. He learned Lee had a valid driver’s license and a conviction for possession of a controlled substance. Lee began to pace back and forth near the car. At some point, Detective Ross Fryberg directed Lee to sit on a nearby curb. During a conversation, Lee told Detective Tilleson the purse in the car was hers. Detective Tilleson asked Lee for permission to search her purse, telling her that he was asking "due to her prior drug conviction."² He also gave Lee warnings pursuant to State v. Ferrier ³ that she was not obligated to consent and that she could revoke consent or limit the scope of the search at any time. Lee consented to the search.⁴ When Detective Tilleson asked Lee if there was anything in her purse he should be concerned about, she said there was some heroin inside. Detectives found heroin and methamphetamine in her purse, advised Lee of her Miranda ⁵ rights, and arrested her for possession of a controlled substance with intent to manufacture or deliver.

¶ 6 Lee moved to suppress the evidence obtained from the search of her purse. Lee testified she did not consent to the search and that a detective told her "he didn't care if there was a little bit of dope in my bag and he just searched the car and searched my stuff."⁶ Lee also testified she "probably" had been using heroin that day.⁷

¶ 7 Detective Tilleson testified he did not suspect Lee of a crime when he requested her consent to search her purse. He and Detective Fryberg confirmed that Detective Tilleson first obtained Lee’s consent to search the purse, gave Ferrier warnings, and then Lee disclosed there were narcotics in the purse. Neither detective recalled telling Lee she was free to leave during the stop. Dispatch time log records suggest the traffic stop commenced at 7:23 p.m. and Detective Tilleson conducted his search at 7:41 p.m.

¶ 8 The trial court denied Lee’s motion to suppress the results of the search of her purse. The court found "the testimony of the [detectives] involved [was] more credible than the defendant’s testimony."⁸ The court also noted the detectives inquired about Lee’s identity "to determine if she was a licensed driver so that the vehicle could be released to her as an alternative to impoundment."⁹ The trial court determined that all of Lee’s statements were voluntary and that none were coerced. The court concluded that Lee validly consented to a search of her purse.

¶ 9 At the bench trial on stipulated facts, the judge found Lee guilty of possession of a controlled substance with intent to deliver. Lee appeals.

ANALYSIS

¶ 10 Challenged findings entered after a suppression hearing that are supported by substantial evidence are binding; unchallenged findings are verities on appeal.¹⁰ Substantial evidence is enough evidence to persuade a fair-minded person of the truth of the finding.¹¹ This court reviews the trial court’s conclusions of law de novo.¹²

¶ 11 Lee’s challenges the sufficiency of the evidence supporting eight of the findings of fact from the suppression hearing. Her challenges are not compelling. Because the trial court heard the testimony from both Lee and the detectives, there was sufficient evidence to support the finding that the officers were more credible than Lee.¹³ Lee’s challenges to other findings are narrow and either relate to theories on which we do not rely or are otherwise immaterial.

Passenger’s Consent to Search Her Purse

¶ 12 Lee’s core argument is that she did not validly consent to the search of her purse because the detectives unlawfully seized her. Notably, she does not challenge the voluntariness of her consent or assert any theory of coercion.¹⁴

¶ 13 Both the Fourth Amendment of the United States Constitution and article I, section 7 of the Washington Constitution prohibit a warrantless search or seizure unless an exception applies.¹⁵ Voluntary consent is an exception to the warrant requirement.¹⁶ But an otherwise voluntary consent may be vitiated by an unlawful seizure.¹⁷ When analyzing a passenger’s consent to search the purse she left in the car, we start with the traffic stop that led to the search.

¶ 14 When police conduct a traffic stop, "it is now well established that ‘[f]or the duration of a traffic stop ... a police officer effectively seizes everyone in the vehicle.’ "¹⁸ If the traffic stop is valid, then seizure of the driver and passengers is also valid.¹⁹ A passenger’s seizure "ordinarily continues, and remains reasonable, for the duration of the stop. Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave."²⁰

¶ 15 At oral argument, Lee asserted that article I, section 7 of the Washington Constitution controls.²¹ She contends the portions of Arizona v. Johnson ²² and Rodriguez v. United States ²³ regarding Fourth Amendment analysis of unrelated questions during a traffic stop do not apply here. Accepting Lee’s premise without deciding it, the key question then becomes what standard applies under article I, section 7 of the Washington Constitution to analyze the impact of an officer’s question unrelated to the justification for the traffic stop.²⁴ We are guided by a long line of well accepted Washington Supreme Court decisions.

¶ 16 The Fourth Amendment and article I, section 7 both recognize an investigative stop exception to the warrant requirement as set forth in Terry v. Ohio.²⁵ The rationale of Terry applies by analogy to traffic stops.²⁶

¶ 17 At oral argument, Lee acknowledged the Terry standards for scope and duration of a stop apply and are the same when analyzed under either the Fourth Amendment or article 1, section 7. Lee’s concession is consistent with our Supreme Court’s recognition in State v. Z.U.E. that "[i]n a challenge to the validity of a Terry stop, article I, section 7 generally tracks the Fourth Amendment analysis."²⁷

¶ 18 The standards for a Terry stop, including the appropriate scope of such a stop, are well established in Washington.²⁸ We analyze such stops on a case-by-case basis.²⁹ "[C]ourts must review an officer’s actions under the totality of the circumstances to determine if a [ Terry stop] seizure is made with the authority of law and is of reasonable scope and duration."³⁰

¶ 19 "Similar to the analysis for determining the initial validity of the stop, the proper scope of a Terry stop depends on ‘the purpose of the stop, the amount of physical intrusion upon the suspect’s liberty, and the length of time the suspect is detained.’ "³¹

"A lawful Terry stop is limited in scope and duration to fulfilling the investigative purpose of the stop."³² Once that purpose is fulfilled, the stop must end.³³ An officer may lawfully extend the stop’s scope and duration based on information obtained by officers during the traffic stop.³⁴ "There is no rigid time limitation on Terry stops."³⁵

¶ 20 Washington courts also recognize that officers may conduct routine law enforcement procedures during traffic stops "as long as they do not unreasonably extend the initial valid stop."³⁶ For example, officers may request a vehicle’s occupants "to step out of and away from their vehicles, and to perform other limited movements."^{37 38} Officers may require passengers to get out of a vehicle to facilitate a search of the vehicle.³⁹ Apart from general officer safety concerns, we note the presence of a passenger in a car during a search of the car would frustrate the efficiency and effectiveness of the search and would place both the passenger and the officer in an awkward position. Officers are obligated to consider reasonable...