State Of Washington v. Amy Carol Taylor ( 2014 )

.- I!
J. n.'i:; I
mhMiz J h,i S'- 12
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 69799-4-1
Respondent,
DIVISION ONE
v.
AMY CAROL TAYLOR, UNPUBLISHED OPINION
Appellant. FILED: June 23, 2014
Becker, J. — In this drug possession case, an officer pulled in behind a
parked vehicle, activated his rear strobe lights for illumination, contacted the
driver, asked her if she had a valid driver's license, examined the license when
she handed it to him, ran a warrants check, discovered an outstanding warrant,
and arrested her on the warrant. We conclude there was no seizure until the
driver was arrested.
The encounter occurred at 1:12 a.m. on September 3, 2012. A Marysville
police officer signaled over the radio that he was conducting a traffic stop and
that another vehicle, a small truck, had turned into a gravel driveway area off the
road nearby. Snohomish County Deputy Sheriff Dan Dusevoir responded.
When he arrived, he stopped his vehicle behind the truck, activated his rear
strobe lights, and approached on foot. Deputy Dusevoir testified that when he
No. 69799-4-1/2
saw the truck's occupants, he recognized them from earlier contacts, including
one involving the recovery of a significant amount of methamphetamine.
Deputy Dusevoir asked appellant Amy Taylor, the driver of the vehicle, if
she was "clear." The parties agree that Taylor correctly understood he was
asking if she had a valid driver's license. Taylor handed him her license. While
standing by the driver's side window, Deputy Dusevoir performed a warrants
check using his radio and discovered that there was an outstanding warrant for
Taylor's arrest. He moved to take Taylor into custody by opening the car door
and taking hold of Taylor's left wrist.
Taylor resisted and appeared to be clutching something tightly in her
hand. Deputy Dusevoir suspected that Taylor had attempted to dispose of
something between the passenger seat and the driver's seat. Once out of the
vehicle, Taylor appeared to drop something, grind it into the gravel with her foot,
and kick it away. Deputy Dusevoir suspected that she was trying to dispose of
narcotics. He called for a K-9 officer.
The K-9 officer brought a narcotics detection dog to the scene. The dog
sniffed the outside of the vehicle and alerted to the presence of drugs. The car
was impounded. Five days later, a search warrant was authorized, based on
affidavits documenting Deputy Dusevoir's observations and the training and
history of the drug dog and her handler.
When the car was searched pursuant to the warrant, methamphetamine
was found in two separate containers in the vehicle. One plastic container
containing 3.38 grams of methamphetamine was located between the front seats
No. 69799-4-1/3
of the vehicle. Another containing 27.78 grams of methamphetamine was found
behind the seats. Taylor was charged with two counts of possession of
methamphetamine. Taylor moved to suppress the methamphetamine. The court
denied the motion. Taylor was tried by a jury and convicted as charged.
Taylor contends Deputy Dusevoir's actions before he learned of the
outstanding warrant constituted a seizure. If his actions did constitute a seizure,
the seizure was unlawful. Detentions must be supported by reasonable
suspicion. State v. Hudson, 124 Wash. 2d 107, 112, 874 P.2d 160 (1994). Under
the Fourth Amendment and article I, section 7, the facts relied on by the
detaining officer must be specific and articulable, rather than premised on a
hunch. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); State
v. Armenta, 134 Wash. 2d 1, 20, 948 P.2d 1280 (1997). All the deputy knew when
he arrived at the scene was that Taylor had pulled over when the Marysville
police officer pulled another car over and she had parked on the side of the road.
He had no specific or articulable suspicion of criminal activity until he discovered
Taylor's outstanding warrant. We conclude, however, that nothing the deputy did
up to that point amounted to a seizure.
A seizure of a person occurs if, in full view of all the circumstances
surrounding the incident, a reasonable person would have believed that he was
not free to leave. United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct.
1870, 64 L. Ed. 2d 497 (1980); State v. Young, 135 Wash. 2d 498, 501, 957 P.2d
681 (1998). "A police officer's conduct in engaging a defendant in conversation
in a public place and asking for identification does not, alone, raise the encounter
No. 69799-4-1/4
to an investigative detention." Armenta, 134 Wash. 2d at 11. The fact that the
person approached is in a parked vehicle does not by itself convert the encounter
into a seizure. The focus of the inquiry is not on whether the defendant's
movements are confined due to circumstances independent of police action, but
on whether the police conduct was coercive. State v. Thorn, 129 Wash. 2d 347,
353, 917 P.2d 108 (1996). overruled on other grounds by State v. O'Neill, 148
Wash. 2d 564, 570, 62 P.3d 489 (2003). Thus the question is not merely whether
the defendant felt free to leave, but "whether he felt free to terminate the
encounter, refuse to answer the officer's question, or otherwise go about his
business." Thorn, 129 Wash. 2d at 353.
In O'Neill, the court held no seizure occurred when an officer approached
a car that was parked in a public space, shined his spotlight on it, knocked on the
window, shined his flashlight in the face of the occupant, and asked for
identification. O'Neill. 148 Wash. 2d at 572-73, 581.
The fact that Deputy Dusevoir activated his rear strobe lights for safety
instead of using a flashlight does not distinguish this case from O'Neill. It would
be a different question if he had activated his emergency lights because that is
more clearly a display of authority signaling that the driver of the vehicle is not
free to leave. State v. Gantt. 163 Wash. App. 133, 141-42, 257 P.3d 682 (2011),
review denied, 173 Wash. 2d 1011 (2012). But as the State argues, an officer is not
expected to engage in nighttime roadside contacts in the dark. Doing so would
pose a hazard both to the officer and to passing motorists. The use of the strobe
light here was no more intimidating than the officer's use of the flashlight in
No. 69799-4-1/5
O'Neill to shine a light on the face of the occupant or the use of a spotlight in
State v. Mote, 129 Wash. App. 276, 120 P.3d 596 (2005).
In Taylor's view, the part of the encounter that most clearly manifested a
show of authority such that a reasonable person would not feel free to leave was
the deputy's question to Taylor about whether she had a valid driver's license.
An officer may request the name and date of birth of the occupant of a
parked vehicle and use that information to conduct a warrants check without a
seizure occurring. Mote, 129 Wash. App. at 292. Taylor contends that asking
whether she had a valid driver's license was more coercive than merely asking
for identification because it indicated the officer's suspicion that she was driving
illegally and implicitly commanded her to prove that she was not.
At oral argument before this court, Taylor asserted that a factually
comparable case showing that the officer's question was coercive is State v.
Soto-Garcia, 68 Wash. App. 20, 841 P.2d 1271 (1992). abrogated on other grounds
bv Thorn, 129 Wash. 2d 347, 351, 917 P.2d 108(1996). In that case, an officer who
was patrolling a street in Kelso at night saw the defendant walking out of an alley
and asked him where he was going and what he was doing. The defendant
answered these questions appropriately. The officer next asked the defendant
for his name. The defendant offered his driver's license. The officer asked him if
he had any cocaine on his person. The defendant responded that he did not.
The officer asked for permission to search the defendant. The defendant gave
permission. The officer reached into the defendant's shirt pocket and found
cocaine. This led to a charge of cocaine possession. The trial court granted the
No. 69799-4-1/6
defendant's motion to suppress. The State appealed. The trial court ruling was
affirmed on the ground that the discovery of the cocaine was the result of
coercive questioning that occurred before the officer had a reasonable suspicion
of criminal activity:
Considering all of the circumstances surrounding the encounter
between Tate and Soto-Garcia, the evidence was sufficient for the
trial court to conclude that a reasonable person would not have felt
free to decline the police officer's requests that he provide
information regarding his activities and submit to a search. The
atmosphere created by Tate's progressive intrusion into Soto-
Garcia's privacy was of such a nature that a reasonable person
would not believe that he or she was free to end the encounter.
The trial court's findings, as well as the record, reveal that
Soto-Garcia had done nothing before being confronted by Tate
which would suggest that he had committed any criminal act. Soto-
Garcia was merely walking on the streets of Kelso in the late
evening, albeit in an area apparently known for cocaine trafficking,
when Tate observed him. For reasons known only to the officer,
Tate confronted Soto-Garcia and began questioning him. After
Soto-Garcia answered Tate's questions "appropriately", Tate
decided to run an "identification check". While Soto-Garcia
apparently produced his identification voluntarily in response to
Tate asking him his name, there is no evidence that suggests that
he consented to the identification check. Although the check
revealed no outstanding warrants for Soto-Garcia, Tate apparently
remained curious, and he asked Soto-Garcia if he had any cocaine
on his person. We agree with the trial judge that at this point, Soto-
Garcia was seized.
Soto-Garcia, 68 Wash. App. at 25.
Unlike in Soto-Garcia, here there was no "progressive intrusion" into
Taylor's privacy. The officer asked her only one question. In view of the totality
of the circumstances, nothing suggests that the question was more coercive than
asking to see her license or asking for her name and date of birth. We conclude
No. 69799-4-1/7
the question asked here was not an appreciably greater show of authority than
the request for identification in O'Neill.
In response to the question, Taylor handed over her driver's license. She
contends that a seizure occurred when Deputy Dusevoir held onto the license
while using his radio to check for warrants. But the deputy did not leave with the
license. He testified that he was standing right next to Taylor while he was
holding her license. Ifthe license is not removed from the defendant's presence,
there is no seizure. State v. Smith, 154 Wash. App. 695, 700, 226 P.3d 195, review
denied, 169Wn.2d 1013(2010).
Taylor argues that use of the identifying information found on her license
to run a warrants check was an investigatory detention like in State v. Rankin,
151 Wash. 2d 689, 695-97, 92 P.3d 202 (2004) (seizure of passenger occurred
when officer, in the course of a lawful traffic stop, requested passenger's
personal information and ran a warrants check). But the Rankin court was
"focused on the different circumstances encountered by pedestrians and
passengers in moving cars that were stopped by police." Mote, 129 Wash. App. at
290.
Following O'Neill and Mote, we conclude Taylor was not seized until she
was arrested on the warrant.
The other disputed issues in the case involve the dog sniff. Taylor
contends the dog sniff was a search and the results must be suppressed
because it was conducted without a warrant.
No. 69799-4-1/8
A dog sniff of a place where the defendant does not have a reasonable
expectation of privacy does not constitute a search. State v. Bovce. 44 Wash. App.
724, 723 P.2d 28 (1986). In Bovce, the dog sniffed a bank safe deposit box.
The dog handler had permission to be in the area, the defendant could not
control who was there, and there was no seizure of the safety deposit box.
Bovce, 44 Wash. App. at 730. The court found it was not a search:
As long as the canine sniffs the object from an area where the
defendant does not have a reasonable expectation of privacy, and
the canine sniff itself is minimally intrusive, then no search has
occurred.
Bovce, 44 Wash. App. at 730. Cf State v. Dearman. 92 Wash. App. 630, 635, 962
P.2d 850 (1998) (under article I, section 7, a dog sniff is a search when it is
directed at the outside of a home), review denied, 137 Wash. 2d 1032 (1999).
No material distinction exists between a dog sniff directed at the exterior of
a vehicle and a dog sniff directed at a safety deposit box. This court has already
held, on slightly different facts, that a dog sniff of a vehicle is not a search. State
v. Hartzell. 156 Wash. App. 918, 237 P.3d 928 (2010). In Hartzell. the dog sniffed
the air coming from an open window of a car and then led police to a firearm 100
yards away. We concluded that the defendant did not have a reasonable
expectation of privacy in the air coming from the open window of the vehicle.
Hartzell, 156 Wash. App. at 929-30.
Bovce and Hartzell establish that when the officer and dog are lawfully
situated outside the place or object being sniffed, then no privacy interest is
implicated as long as the place is not a home. Here, the K-9 handler and dog
were lawfully present outside Taylor's car. Following Bovce and Hartzell, we
8
No. 69799-4-1/9
conclude the dog sniff did not constitute a search. Accord, Illinois v. Caballes.
543 U.S. 405, 409, 125 S. Ct. 834, 160 L. Ed. 2d 842 (2005).
The dog alerted after sniffing Taylor's car, signaling the presence of drugs.
This information was included in the affidavit in support of a warrant to search the
car. Taylor challenges the adequacy of the affidavit.
The affidavit described the dog team's training. The training included a 4-
week course for the officer and dog together and a 14-week course for the dog
alone. According to the affidavit, the officer and dog had a history of "800
applications where controlled substances were discovered and / or the odor of
controlled substances was present." However, the affidavit contained no
information about the frequency of false alerts, and Taylor argues that the
number of correct alerts by the dog is meaningless unless accompanied by a
track record of false positive and false negatives.
Generally, an alert by a trained drug dog is sufficient to establish probable
cause for the presence of a controlled substance. State v. Jackson, 82 Wash. App.
594, 606, 918 P.2d 945 (1996), review denied, 131 Wash. 2d 1006 (1997). This
court has determined that an affidavit similar to the one in this case was sufficient
to establish probable cause. State v. Flores-Moreno, 72 Wash. App. 733, 741, 868
P.2d 648, review denied, 124 Wash. 2d 1009 (1994). The affidavit stated that the
drug dog had received 525 hours of training, had been certified by the
Washington State Police Canine Association for narcotics detection, and had
participated in 97 searches where narcotics were found. Flores-Moreno, 72 Wn.
App. at 741. Following Flores-Moreno, we conclude the information about the
No. 69799-4-1/10
track record of the dog and her handler was sufficient even though it did not
quantify the number of inaccurate alerts.
And even if the dog sniff did not conclusively establish probable cause, the
warrant was also supported by Deputy Dusevoir's observation that Taylor
appeared to hide something between the seats of the vehicle and then grind
something into the ground when she was arrested.
We conclude the information offered in support of the warrant was enough
to establish probable cause to search the vehicle.
Taylor was convicted of two counts of possession of methamphetamine
based on the two containers found in different places inside the car. She
contends the two convictions violate double jeopardy because both containers of
methamphetamine were found in the same search. The State concedes this
point. We accept the concession. State v. Adel, 136 Wash. 2d 629, 965 P.2d 1072
(1998).
Taylor filed a statement of additional grounds in which she challenges the
credibility of the deputy who arrested her. She suggests that the other occupant
of the vehicle was the owner of the drugs, and she points out alleged
inconsistencies in the evidence and testimony. Because this court does not
resolve disputed facts or issues of credibility, the statement of additional grounds
does not present issues warranting further scrutiny.
Affirmed in part. We reverse and remand with instructions to vacate the
second conviction for possession of methamphetamine.
10
No. 69799-4-1/11
2b ^A~, f UVK^ .
11