State Of Washington, Resp. v. Kenneth Kelly, App. ( 2014 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 69607-6-
Respondent, DIVISION ONE
v.
KENNETH DAJION KELLY, UNPUBLISHED
Appellant. FILED: April 28, 2014
Cox, J. — Kenneth Kelly appeals his conviction for unlawful possession of
a firearm, contending the trial court erred by denying his motion to suppress
evidence of the firearm. Because the stop of the vehicle in which he was a
passenger was not pretextual, he was lawfully seized, and the firearm within his
reach was also lawfully seized, we affirm.
In the early morning of February 26, 2012, Seattle Police Detectives Josh
Rurey and Robert Thomas were patrolling the streets in a patrol car bearing
subdued markings on its side. The detectives, in full uniform, were assigned to
the gang unit.
As the detectives traveled northbound on 51st Avenue South, a Mercedes
sedan with tinted side windows drew their attention when it conducted a U-turn in
No. 69607-6-1/2
front of them. At approximately 12:42 a.m., Detective Rurey entered the
Mercedes' license plate number into his computer. He learned that the title to
this recently sold vehicle had not been transferred within the requisite 45 day
time limit.1 The detectives decided to turn their patrol car around and stop the
Mercedes for this traffic violation. However, while the detectives were obtaining
the information from their computer, they lost sight of the Mercedes.
Once the detectives turned around to follow the Mercedes, they saw that
the vehicle had driven a significant distance in a short amount of time. It was
apparent to them that the vehicle had been traveling at a high rate of speed over
the posted speed limit. Although the detectives drove over the speed limit as
they pursued the Mercedes, they were initially unable to close in on the vehicle.
At approximately 12:45 a.m., the detectives caught up to the Mercedes
when it stopped at a traffic light. The detectives pulled up behind the vehicle at
the light. When the traffic light turned green, Detective Thomas activated the
patrol vehicle's emergency lights. The Mercedes turned left at the intersection
and came to a stop.
Detective Thomas headed toward the driver's side of the Mercedes to
speak to the driver while Detective Rurey approached the passenger's side. At
this time, the driver voluntarily opened the driver door. But because of the tinted
windows and the dark outdoor surroundings, the detectives could not see into the
interior of the vehicle. As a result, to ensure officer safety, Detective Rurey
opened the rear passenger door and Detective Thomas asked the driver to roll
1 Former RCW 46.12.101(6); RCW 46.12.650(7).
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No. 69607-6-1/3
down the vehicle's windows. The driver rolled down the window on the driver's
door. From their vantage points, the detectives observed two occupants in the
back seat of the vehicle, a driver, and a front seat passenger. Kelly was one of
the two passengers in the back seat. The detectives did not recognize the
occupants.
The detectives noticed that Kelly and the other back seat passenger were
not wearing seat belts. Detective Rurey consequently asked them to identify
themselves. Kelly provided his name and date of birth.
Meanwhile, Detective Rurey stood outside of the Mercedes and scanned
its interior through the open rear passenger door to look for potential threats.
With his flashlight he noticed an object in the front passenger seat's back pocket
that he immediately recognized as the handle of a handgun. It was situated
directly in front of Kelly and within his reach. Detective Rurey drew his weapon,
alerted Detective Thomas, and ordered the occupants to place their hands on the
ceiling. The detectives then called for backup units.
When additional gang unit officers arrived at the scene, they removed the
occupants from the Mercedes. They first took Kelly out of the vehicle, lay him on
the ground, and handcuffed him. Detective Rurey then reached into the vehicle
and removed the gun.
Once the detectives learned that Kelly had been previously convicted of
manslaughter, they arrested him for unlawful possession of a firearm. The
detectives did not arrest anyone else. Detective Thomas later cited the driver for
traffic violations.
No. 69607-6-1/4
The State charged Kelly with one count of unlawful possession of a
firearm in the first degree. Pursuant to CrR 3.6, Kelly moved to suppress all
evidence against him, arguing that Detectives Rurey and Thomas conducted an
unlawful search and seizure. Kelly contended that he was unlawfully seized
because the stop was pretextual, that the detectives lacked sufficient justification
to request his identification, and that the detectives' discovery of the gun was the
result of an unconstitutional search.
The trial court denied Kelly's motion to suppress and entered written
findings of fact and conclusions of law, incorporating by reference its oral findings
and conclusions. Kelly then waived his right to a jury trial and agreed to a trial on
stipulated evidence. Based on this evidence, the trial court found Kelly guilty of
unlawful possession of a firearm.
Kelly appeals.
SUBSTANTIAL EVIDENCE
Kelly assigns error to twelve of the trial court's twenty-six findings of fact
entered following the CrR 3.6 hearing. None are persuasive.
We review the trial court's findings of fact for substantial evidence.2
Substantial evidence is evidence sufficient to persuade a fair-minded, rational
person of the truth of the finding.3
After a careful review of the record, we hold that the challenged findings
are supported by substantial evidence, including abundant testimony provided by
2 State v. Martinez. 135 Wash. App. 174, 179, 143 P.3d 855 (2006).
3 State v. Levy. 156 Wash. 2d 709, 733, 132 P.3d 1076 (2006).
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No. 69607-6-1/5
Detectives Rurey and Thomas at the suppression hearing. We reject the
arguments to the contrary.
PRETEXTUAL TRAFFIC STOP
Kelly contends that the trial court erred by concluding that the detectives
conducted a lawful traffic stop and that the stop was not pretextual. We
disagree. The evidence established that the detectives' decision to initiate the
traffic stop was motivated by the transfer of title violation.
Article I, section 7 of the Washington Constitution prohibits unreasonable
seizures.4 A warrantless seizure is per se unreasonable.5 Evidence obtained in
violation of this constitutional provision must be suppressed, and evidence
obtained as a result of any subsequent search must also be suppressed as fruit
of the poisonous tree.6
However, a warrantless seizure is valid if it falls within the scope of one of
the narrowly drawn exceptions to the warrant requirement.7 Investigatory
detentions, including warrantless stops for traffic infractions, are a recognized
exception.8 Law enforcement officers may conduct a warrantless traffic stop if
they have a reasonable and articulable suspicion that a traffic violation has
occurred or is occurring.9 The State bears the burden of proving by clear and
4 State v. Kennedy. 107 Wash. 2d 1, 4, 726 P.2d 445 (1986).
5 State v. Kinzv. 141 Wash. 2d 373, 384, 5 P.3d 668 (2000); State v. Ladson. 138 Wash. 2d
343, 349, 979 P.2d 833 (1999).
6 Kennedy. 107 Wash. 2d at 4 (citing Wong Sun v. United States. 371 U.S. 471, 83 S. Ct.
407, 9 L Ed. 2d 441 (1963)).
7 Ladson. 138 Wash. 2d at 349-50.
8 State v. Rife. 133Wn.2d140, 150-51. 943 P.2d 266 (1997); State v. Duncan, 146
Wash. 2d 166, 174-75, 43 P.3d 513 (2002).
9 Ladson. 138 Wash. 2d at 349.
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No. 69607-6-1/6
convincing evidence that a warrantless seizure falls within an exception to the
warrant requirement.10
But where the asserted basis for a traffic stop is a pretext for a warrantless
investigation, the stop violates article I, section 7 of the Washington
constitution.11 A traffic stop is pretextual if a law enforcement officer makes the
stop "not to enforce the traffic code, but to conduct a criminal investigation
unrelated to the driving."12 In this situation, the officer "relies on some legal
authorization as 'a mere pretext to dispense with [a] warrant when the true
reason for the seizure is not exempt from the warrant requirement.'"13
In determining whether a stop is pretextual, courts consider the totality of
the circumstances, including "both the subjective intent of the officer as well as
the objective reasonableness of the officer's behavior."14 We review de novo
whether a stop is pretextual.15
Here, the totality of the circumstances demonstrates that the traffic stop
was not pretextual. After hearing extensive testimony, the trial court found that
"Detectives Rurey and Thomas decided to make a traffic stop as a result of the
title transfer violation" and that "[t]he decision to initiate the traffic stop was
10 State v. Diluzio. 162 Wash. App. 585, 590, 254 P.3d 218, review denied. 272 P.3d 850
(2011); State v. Doughty. 170 Wash. 2d 57, 62, 239 P.3d 573 (2010); State v. Garvin. 166 Wash. 2d
242, 250, 207 P.3d 1266 (2009).
11 State v. Nichols. 161 Wash. 2d 1, 9, 162 P.3d 1122 (2007).
12 Ladson. 138 Wash. 2d at 349.
13 State v. Arreola. 176 Wash. 2d 284, 294, 290 P.3d 983 (2012) (quoting Ladson. 138
Wash. 2d at 358).
14 Ladson. 138 Wash. 2d at 358-59.
15 Arreola. 176 Wash. 2d at 291.
No. 69607-6-1/7
motivated by [the traffic] violation and observation."16 These facts reflect the
detectives' subjective intent to stop the Mercedes because of the traffic violation.
Additional evidence indicates that when the detectives followed the
Mercedes, they were not investigating any criminal activity other than the traffic
violation. According to the detectives' testimony, other than the transfer of title
violation, nothing led them to believe that the occupants were involved in criminal
or gang-related activities. Moreover, at the time the detectives entered the
license plate into the computer and decided to stop the vehicle, they did not
recognize the Mercedes or its occupants from any gang-related or criminal
investigations in which they had been involved. Nor did the detectives recognize
the occupants once they were able to observe them after making the stop.
Furthermore, during the pursuit, the detectives had no information about the
identity of the vehicle's occupants and did not take steps to obtain such
information.
Nevertheless, Kelly claims that the detectives' delay in initiating the stop—
rather than immediately stopping the vehicle upon discovering the transfer of title
violation—indicates that they were, in actuality, searching for criminal activity
unrelated to the traffic violation. We disagree.
Washington courts have found pretext where law enforcement officers
follow a vehicle to search for the commission of criminal conduct.17 But that did
not happen here. The detectives decided to make the stop immediately upon
16 Clerk's Papers at 217.
17 See, e.g., Ladson, 138 Wash. 2d at 346; State v. Montes-Malindas, 144 Wash. App. 254,
257, 182 P.3d 999 (2008); State v. DeSantiago, 97 Wash. App. 446, 450-51, 983 P.2d 1173 (1999).
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No. 69607-6-1/8
their discovery of the title transfer violation. Any delay in stopping the Mercedes
was attributed to its excessive speed as it traveled down the street and outside of
the detectives' view. Even when the detectives sped down the street, they were
initially unable to catch up with the Mercedes. Only when the Mercedes stopped
at a traffic light were the detectives in a position to make the traffic stop,
approximately three minutes after they decided to investigate the transfer of title
violation.
Indeed, the facts here are similar to those in Nichols. There, the law
enforcement officer "immediately pursued the vehicle after he saw what he
believed to be several infractions and activated his lights as soon as he caught
up with it."18 The supreme court rejected the defendant's claim that the stop was
pretextual.19 In so doing, the court distinguished the facts in that case from
Ladson, DeSantiago, and Myers, cases in which courts determined pretext
existed.20 In those cases, the court explained, the stops were pretextual
because the "officers suspected criminal activity and followed vehicles waiting for
commission of a traffic infraction so the vehicle could be stopped."21 Like Nichols
and unlike the pretext cases, the detectives here began to pursue the Mercedes
immediately after discovering the transfer of title violation. They activated their
emergency lights as soon as they caught up to the Mercedes at the intersection.
This stop was not pretextual.
18 Nichols. 161 Wash. 2d at 12.
19 jd
20 ]d at 11-12 (citing Ladson, 138 Wash. 2d at 346; DeSantiago, 97 Wash. App. at 452; State
v. Myers. 117 Wash. App. 93, 97, 69 P.3d 367 (2003)).
21 Nichols, 161 Wn.2dat12.
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No. 69607-6-1/9
Kelly next asserts that, because the detectives were gang unit officers and
not general patrol officers, they were actually looking for criminal activity. In so
contending, Kelly attempts to draw parallels between the gang unit officers in
Ladson and the detectives here. This argument is unpersuasive.
In Ladson, the gang unit officers who conducted the traffic stop admitted
to following the vehicle in order to look for a reason to stop it.22 Because the
officers' suspicion about the driver's rumored drug involvement was the actual
motivation for finding a legal reason to stop him, the supreme court held that the
stop was pretextual.23
Kelly's reliance on Ladson is misplaced. As discussed above, the
detectives did not pursue the Mercedes to search for criminal activity. Nor did
they harbor any gang-related suspicions that motivated the traffic stop.
Notwithstanding these factual discrepancies between Ladson and the present
case, Kelly's argument fails for two reasons.
First, whether the detectives were gang unit officers and not patrol officers
is not considered a dispositive factor in determining whether a traffic stop is
pretextual.24 The detectives provided substantial evidence evincing that their
responsibilities as gang unit officers include routine patrol duties and traffic
enforcement. Detective Rurey testified that although his focus is on gang-related
activity, his responsibilities are varied and include traffic enforcement, responding
to 911 calls, and conducting criminal investigations that are not gang related. On
22 Ladson. 138 Wash. 2d at 346.
23 Id, at 346, 360.
24 See Myers, 117 Wash. App. at 97; DeSantiago, 97 Wash. App. at 452.
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No. 69607-6-1/10
cross-examination, Detective Rurey explained that when he observes minor
traffic violations, he generally aims to conduct a traffic stop if he is able to do so.
Detective Thomas's testimony confirmed that gang unit detectives' duties are not
limited to gang-related investigations. He testified that he stops people for traffic
violations "[a]s the opportunity arises." Therefore, in light of the totality of the
circumstances, the detectives' association with the gang unit does not render the
traffic stop pretextual.
Second, Kelly next asserts that because the detectives rarely issue traffic
citations since joining the gang unit, the stop was pretextual. But the detectives'
testimony proves the contrary.
Detective Rurey testified at the suppression hearing that when he was a
patrol officer, he issued many more citations because he had recently graduated
from the police academy and hoped to gain experience, and because traffic
enforcement was his only duty at the time. Detective Rurey also testified that his
position in the gang unit encompasses a wider range of responsibilities and,
therefore, he issues fewer citations. Moreover, according to Detective Rurey's
testimony, his approach has changed. On the gang unit, he gives more warnings
instead of tickets when he makes traffic stops. This is in part because he seeks
"positive contact" with individuals when enforcing traffic laws. Therefore, that the
detectives seldom issue citations does not indicate pretext.
Kelly argues, finally, that the detectives' actions once they stopped the car
suggest that the stop was pretextual. He points to the fact that Detective Rurey
opened the rear passenger door, shone his flashlight to see inside before
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No. 69607-6-1/11
questioning the occupants, and later asked Kelly his name, looking for criminal
activity. Again, we disagree.
The detectives' conduct reflects their intention to ensure officer safety. At
the traffic light, the detectives observed occupants moving around through the
Mercedes' rear untinted window. But because of the dark surroundings and the
tinted windows, when approaching the vehicle, the detectives were unable to
verify how many occupants were inside or determine what they were doing. The
detectives did not know whether the occupants possessed weapons or posed a
threat to the detectives' safety. Consequently, Detective Rurey opened the
passenger door. When he noticed that Kelly and the other rear seat passenger
were not wearing seatbelts, he asked for their names. The detectives' actions
are not indicative of an attempt to investigate criminal activity unrelated to the
traffic violation.
Under the totality of the circumstances surrounding the traffic stop, we
hold that the detectives, both objectively and subjectively, were motivated by the
need to investigate the traffic violation. The traffic stop was not a pretext.
SEIZURE OF KELLY
Kelly argues in the alternative that Detective Rurey's request for his
identification while Kelly was a passenger in the traffic stop was an unlawful
seizure. He argues further that the firearm evidence should be suppressed. We
disagree.
"Under article I, section 7... passengers are unconstitutionally detained
when an officer requests identification 'unless other circumstances give the
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No. 69607-6-1/12
police independent cause to question [the] passengers.'"25 Such circumstances
include the failure to wear a seat belt, a traffic infraction.26 Moreover,
"[w]henever 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."27
Here, during the traffic stop, the detectives noticed that Kelly was not
wearing a seat belt. Their reasonable suspicion that Kelly committed this
infraction gave the detectives independent cause to question him. According to
Detective Rurey's testimony, he requested Kelly's identification because he "was
committing his own, independent law violation." The detectives therefore had the
authority to detain Kelly for a reasonable period of time in order to identify him.
Kelly was not unlawfully seized.
SEIZURE OF FIREARM
Kelly contends that the detectives had no lawful basis to seize the firearm.
We disagree and hold that the seizure of the gun was lawful.
Kelly first argues that Detective Rurey had no basis to request Kelly's
identification, and without such identification, he would not have known that the
gun was contraband. As we already discussed in this opinion, Detective Rurey
lawfully requested Kelly's identification. Thus, this contention is meritless.
Kelly next asserts that that the seizure of the gun was a result of an
unlawful search incident to arrest. Kelly did not make this argument to the trial
25 State v. Rankin. 151 Wash. 2d 689, 695, 92 P.3d 202 (2004) (quoting State v. Larson. 93
Wash. 2d 638, 642, 611 P.2d 771 (1980)).
26 State v. Chellv. 94 Wash. App. 254, 259-60, 970 P.2d 376 (1999); RCW 46.61.688(3).
27 RCW 46.61.021(2).
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No. 69607-6-1/13
court. Instead, in an unchallenged conclusion of law, the trial court justified the
seizure under the plain view exception:
Within several minutes of the initial stop, Detective Rurey saw the
gun in plain view without any intrusive or unlawful search.
Detective Rurey never entered the car prior to seeing the gun. The
use of a flashlight and Detective Rurey's movement outside of the
Car to get the best view possible of the interior of the Car was not
an unlawful search.128'
By stating that Detective Rurey saw the firearm "in plain view without any
intrusive or unlawful search" the trial court misapplied the plain view doctrine,
mistaking it for the open view doctrine. "Whereas a 'plain view' situation involves
an officer viewing an item after a lawful intrusion into a constitutionally protected
area, 'open view' involves an observation from a nonconstitutionally protected
area."29 Thus, a lawful seizure of the evidence observed in plain view "'must turn
on the legality of the intrusion that enable[d the detective] to perceive and
physically seize the property in question.'"30
Here, Detective Rurey intruded upon a constitutionally protected area
when he opened the rear passenger door. But such an intrusion is permissible
within the scope of a proper Terry stop.
A proper Terry stop permits police officers to conduct a limited protective
search of the passenger compartment.31 The protective search of a vehicle must
be predicated on an officer's reasonable suspicion that the suspect is dangerous
28 Clerk's Papers at 220 (emphasis added).
29 Kennedy, 107 Wash. 2d at 10.
30 Jd at 9 (quoting Texas v. Brown, 460 U.S. 730, 737, 103 S. Ct. 1535, 75 L. Ed. 2d 502
(1983)).
31 State v. Larson. 88 Wash. App. 849, 850-51, 946 P.2d 1212(1997); see Terry v. Ohio.
392 U.S. 1, 21, 88 S. Ct. 1868, 20 L Ed. 2d 889 (1968).
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No. 69607-6-1/14
and may gain access to a weapon in the vehicle.32 Additionally, the "protective
search for weapons must be objectively reasonable, though based on the
officer's subjective perception of events."33 The existence of an objectively
reasonable concern for officer safety is determined by evaluating the entire
circumstances of the stop.34
Detectives Rurey and Thomas conducted a limited protective search that
was justified by their concern for safety. When approaching the Mercedes, the
detectives' view of the interior was obstructed, precluding their ability to assess
any possible threat from the passengers inside. Given the detectives' concerns
for safety, opening the door was objectively reasonable. Thus, this intrusion was
proper. Furthermore, Detective Rurey immediately recognized the handgun that
was within Kelly's reach.35 Seizing that firearm was lawful.
The trial court did not err by denying Kelly's motion to suppress.
We affirm the judgment and sentence.
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32 State v. Glossbrener, 146 Wash. 2d 670, 680-81, 49 P.3d 128 (2002).
33 Larson, 88 Wash. App. at 853-54.
34 Glossbrener, 146 Wash. 2d at 679.
35 See State v. Hatchie, 161 Wash. 2d 390, 395, 166 P.3d 698 (2007) ("A plain view search
is legal when the police (1) have a valid justification to be in an otherwise protected area and (2)
are immediately able to realize the evidence they see is associated with criminal activity.").
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