State v. N.M.N.

STATE OF WASHINGTON, Appellant, v. N.M.N.,^[†] Respondent.

No. 37710-1-II

Court of Appeals of Washington, Division II

January 13, 2009

UNPUBLISHED OPINION

Quinn-Brintnall J.

The State of Washington appeals a Jefferson County Superior Court order granting N.M.N.'s motion to suppress evidence. The court ruled that Port Townsend Police Officer Jason Avery did not have a well-founded suspicion that N.M.N. was engaged in criminal activity when he asked her to step out of the vehicle in which she was a passenger. The State contends that the record does not support that determination. We affirm.^[1]

FACTS

In the early morning of November 10, 2007, Washington State Patrol Trooper Russell Sanders stopped a vehicle driven by Samuel Smith due to a broken taillight. When he approached the vehicle, he smelled a strong odor of alcohol. He asked Smith whether he had been drinking and Smith replied that he had not. However, Sanders observed that both Smith and his passenger, N.M.N., had "droopy, bloodshot, watery eyes." Report of Proceedings (RP) (Apr. 10, 2008) at 9.

Trooper Sanders called for backup and Officer Avery arrived shortly thereafter. Sanders told Avery what he had seen and asked him to observe the occupants of the car. Avery, too, noticed the odor of alcohol. He said the "largest factor" that he observed "was the flush and bloodshot eyes." RP (Feb. 7, 2008) at 10.

While Trooper Sanders dealt with Smith, Officer Avery dealt with N.M.N. When he asked whether she had been drinking, she asked whether she could have her parents present when she talked to him. He said that she did not have that right but did have the right to have an attorney present. She did not ask for an attorney.

Officer Avery asked N.M.N. to submit to a portable breath test (PBT) and she agreed, producing a result of 0.011. On the basis of that reading, Avery arrested her for being a minor in possession of alcohol. After she had been advised of her rights, N.M.N. admitted that she had had a beer earlier. When they searched the vehicle, the officers found a small plastic baggie containing a marijuana stem and some residue in the glove compartment. N.M.N. said "it was old, but it was hers." RP (Feb. 7, 2008) at 13.

The State initially charged N.M.N. with being a minor in possession of alcohol but amended the information to add a charge of possession of 40 grams or less of marijuana. N.M.N moved to suppress the evidence pertaining to her. The juvenile court granted that motion, finding, in pertinent part:

4. Officer Avery observed [N.M.N.], who appeared to be a minor, had bloodshot eyes.

5. Officer Avery did not observe the odor of the alcohol on [N.M.N.'s] breath or person while she was inside the vehicle.

9. Officer Avery testified that he could not tell whether the alcohol he smelled was coming from the vehicle or [N.M.N.'s] person.

10. Officer Avery asked [N.M.N.] to step from the vehicle. Officer Avery then asked that she submit to a PBT, which resulted in a .011.

Clerk's Papers (CP) at 18-19. On the basis of these findings, the juvenile court concluded, in pertinent part that:

The officer's observation that the minor passenger appeared to have bloodshot eyes does not amount to an articulable suspicion that she was exhibiting the effects of having consumed alcohol, particularly when no odor of alcohol was observed on her breath prior to her being requested to step from the vehicle.

CP at 19. The juvenile court subsequently denied a motion for reconsideration and dismissed the charges, finding that there was insufficient evidence to proceed to trial.

DISCUSSION

We begin with the proposition that, in Washington, vehicle passengers hold an independent, constitutionally protected privacy interest not diminished merely by stepping into a vehicle driven by another. Wash. Const., art. I, § 7; State v. Byrd, 110 Wn.App. 259, 262, 39 P.3d 1010 (2002); City of Spokane v. Hays, 99 Wn.App. 653 658, 995 P.2d 88 (2000).

The initial seizure of a vehicle and its occupants does not justify further intrusion by law enforcement officers on the rights of passengers beyond those steps necessary to control the scene or those steps justified by exigent circumstances such as officer safety. State v. Rehn, 117 Wn.App 142, 151, 69 P.3d 379 (2003) (quoting Byrd, 110 Wn.App. at 263). To extend authority beyond the initial seizure of a vehicle and its driver and to exert control over a passenger, law enforcement officers must have an independent, articulable, and lawful basis for their action. State v. Larson, 93 Wn.2d 638, 642-45, 611 P.2d 771 (1980). There is such an independent basis if the officer has an articulable suspicion of criminal activity on the part of the passenger. See State v. Rankin, 151 Wn.2d 689 699, 92 P.3d 202 (2004).

In reviewing a trial court's suppression decision, we consider whether substantial evidence supports the challenged findings and whether those findings support the conclusions of law. See State v. Littlefair, 129 Wn.App. 330, 339, 119 P.3d 359 (2005). Here, there is no challenge to the findings made and they are verities on appeal. Littlefair, 129 Wn.App. at 339. Rather, the State argues that there was evidence in the record that the court should have, but apparently did not, consider, i.e., evidence that N.M.N.'s face was flushed. The State contends that the evidence of the odor of alcohol, N.M.N.'s bloodshot eyes and flushed face, and the fact that her companion had been drinking were enough to support a reasonable suspicion that she had been engaged in the same activity.

The absence of a finding of fact...