Schlegel v. Department of Licensing , 137 Wash. App. 364 ( 2007 )

f 1 Washington Department of Fish and Wildlife (DFW) officers stopped Phillip R. Schlegel to check his hunting license under RCW 77.15.080(1). An officer smelled alcohol on Mr. Schlegel’s breath. A driving under the influence (DUI) arrest followed. Mr. Schlegel unsuccessfully challenged the stop as an impermissible roadblock. Mr. Schlegel successfully appealed both his administrative license suspension and DUI conviction to the superior court. We granted discretionary review in both cases. We hold that the superior court erred in disregarding factual findings and incorrectly decided DFW lacked articulable suspicion under statutory authority to stop Mr. Schlegel. Accordingly, we reverse the superior court and affirm Mr. Schlegel’s district court conviction for DUI and his Department of Licensing (DOL) license suspension.

Brown, J. —

FACTS

¶2 The suspension facts (No. 24314-1-III) are derived from the DOL findings of fact and exhibit 1 admitted by the DOL hearing officer that incorporates the general report of DFW Officer Brian Fulton. The DUI facts (No. 24400-8-III) are derived from the district court’s memorandum decision on pretrial motions following the testimony of Officer Fulton.

¶3 On October 30, 2004, the opening day of elk hunting season, Officer Fulton stopped Mr. Schlegel and a passenger in a truck exiting the L.T. Murray Wildlife Area on Hutch-ins road (a one-lane, dirt road near an entrance gate). Officer Fulton described Hutchins road as a not well maintained “hunting road.” Clerk’s Papers (CP) (No. 24400-8-III) at 22. Officer Fulton testified he was contacting vehicles “[t]o check for wildlife, check for licenses.” Id. at 20. Officer Fulton believed he had “articulable facts” under RCW 77.15.080 to stop some vehicles. Id. at 21.

¶4 Officer Fulton did not “contact everybody [he] saw.” Id. at 22. Officer Fulton was stopping solely those vehicles containing people he believed “were engaged in hunting.” Id. at 21. Officer Fulton saw the occupants of Mr. Schlegel’s vehicle were “dressed in hunting clothing.” CP (No. 24314-l-III) at 14, 32. Officer Fulton described the hunting clothing as “warm type clothing” and “consistent with what hunters type — typically wear.” CP (No. 24400-8-III) at 21, 22. Officer Fulton testified Mr. Schlegel “was driving a vehicle consistent with elk hunters in that area.” Id. at 21. Officer Fulton stepped into the road and signaled Mr. Schlegel to stop.

¶5 Officer Fulton spoke first with the passenger, who said “he and the driver had been elk hunting.” CP (No. 24314-l-III) at 32. “They both had elk rifles sitting in the cab of the truck with them.” Id. When Officer Fulton contacted Mr. Schlegel to verify his hunting license and tag, he smelled alcohol on Mr. Schlegel’s breath. Mr. Schlegel was referred to the Washington State Patrol for investigation of DUI and arrested.

¶6 Mr. Schlegel challenged the basis of the stop in a hearing for the administrative suspension of his driver’s license. In findings of fact and conclusions of law, the hearing officer concluded the officer was authorized by RCW 77.15.080(1) to stop Mr. Schlegel and ordered that the administrative action to suspend his driver’s license be sustained.

¶7 Mr. Schlegel successfully appealed to the superior court, where the court held the stop constituted an unlawful roadblock.

¶8 At his DUI trial, Mr. Schlegel unsuccessfully requested to suppress the evidence. The court concluded:

[T]he checkpoint was established on the opening day of the general elk-hunting season and placed on an isolated road where hunting activity was to be expected. Only those vehicles that appeared consistent with “hunting activity” were stopped. The contact was brief in the governmental interest of enforcement of laws for the preservation of wildlife.

CP (No. 24400-8-III) at 14.

¶9 Mr. Schlegel was subsequently convicted. He appealed to the superior court. He then moved for res judicata application of the superior court’s licensing decision to the appeal of the district court’s suppression ruling. The motion was granted and his DUI charge was dismissed with prejudice.

¶10 We granted review of the superior court’s order to dismiss the DUI charge and order reversing DOL’s order.

ANALYSIS

¶11 The issue is whether, under these facts, the district court and DOL erred in concluding Officer Fulton legally stopped Mr. Schlegel under RCW 77.15.080. Mr. Schlegel contends the stop was unconstitutional because it constituted an illegal roadblock under City of Seattle v. Mesiani, 110 Wn.2d 454, 755 P.2d 775 (1998) and, thus, the derived evidence should have been excluded.

¶12 “RAL J 9.1 governs our review of an or derby a court of limited jurisdiction, and the implied consent statute governs our review of DOL’s license revocation order.” Lewis v. Dep’t of Licensing, 125 Wn. App. 666, 673-74, 105 P.3d 1029 (2005) (footnote omitted) (citing RCW 46.20-.308)). These orders are reviewed for errors of law. Id. at 674 (citing State v. Frank, 112 Wn. App. 515, 520, 49 P.3d 954 (2002) (citing RALJ 9.1(a))). Thus, we accept the limited jurisdiction court’s findings when they are supported by substantial evidence and, like the superior court, we review for errors of law.

¶13 We first examine the statutory grounds that the DOL hearing officer and district court found to justify the stop. “Where an issue may be resolved on statutory grounds, the court will avoid deciding the issue on constitutional grounds.” Tunstall v. Bergeson, 141 Wn.2d 201, 210, 5 P.3d 691 (2000).

114 RCW 77.15.080(1) provides:

Based upon articulable facts that a person is engaged in fishing, harvesting, or hunting activities, fish and wildlife officers have the authority to temporarily stop the person and check for valid licenses, tags, permits, stamps, or catch record cards.

¶15 For the wildlife officer’s authority to be valid, the officer must have “articulable facts” that a person is engaged in hunting activities. RCW 77.15.080(1). Articulable means “a substantial possibility.” See State v. Kennedy, 107 Wn.2d 1, 5-6, 726 P.2d 445 (1986) (regarding articulable suspicion for a Terry¹ stop).

¶16 Hunting is defined as “an effort to kill [or] injure” a “wild animal or wild bird.” RCW 77.08.010(7). Washington authority has generally held that hunting involves more than the actual shooting of an animal. “Hunters begin to “hunt big game’ not when they actually encounter big game, but rather when they make an effort to kill or injure big game in an area where such animals may reasonably be expected.” State v. Walsh, 123 Wn.2d 741, 748, 870 P.2d 974 (1994). In Goodell v. Northwestern Mutual Accident Ass’n, 130 Wash. 55, 62, 226 P. 266 (1924), the court held that an insured decedent was “engaged in hunting” as a joint enterprise when he rowed a boat while his companion was shooting. We now turn to the unchallenged facts, verities on appeal.

¶17 First, Officer Fulton observed Mr. Schlegel’s vehicle on the opening day of elk hunting season inside an elk hunting area. The truck’s occupants wore hunting clothing, clothes of a type that hunters typically wear. When Officer Fulton first observed him, Mr. Schlegel was driving a vehicle consistent with the type that hunters use on a poorly maintained dirt hunting road. Based on his observations, a substantial possibility existed that he was engaged in hunting. Thus, articulable facts justified an initial, brief inquiry stop.

f 18 Second, while Officer Fulton approached the vehicle, he saw the occupants possessed elk rifles in the truck-cab. Thus, Officer Fulton’s initial suspicions justifiably increased justifying time for further inquiry.

f 19 Third, Officer Fulton was immediately told by the passenger that the pair had been elk hunting, confirming his articulable suspicions and justifying contact with Mr. Schlegel, the driver. At this point, other facts were collected, that are not now contested, that ultimately led to the loss of Mr. Schlegel’s license and his DUI conviction.

¶20 The DOL hearing examiner and the district court judge found the above facts, mainly from the testimony of Officer Fulton. A review court looks to the record to determine if the facts are supported by the record. They are. Thus, the question becomes whether the facts, as found, support the legal conclusions. They do. Therefore, the superior court erred in disregarding the unchallenged fact-finding accomplished by the DOL hearing examiner and the district court judge. Articulable facts existed indicating Mr. Schlegel was engaged in hunting activities when first observed by Officer Fulton, permitting a brief investigatory stop under authority of law, RCW 77.15.080(1). Hence, we decline to engage in a constitutional analysis.

¶21 In sum, hunting is a highly regulated activity. RCW 77.15.080 applied to the facts found by the DOL hearing examiner and the district court judge show the wildlife officer’s authority to stop Mr. Schlegel. The district court and DOL correctly interpreted and applied RCW 77.15.080 when considering Mr. Schlegel’s roadblock challenge. Further, the record shows Officer Fulton did not stop every passing vehicle but restricted his brief investigatory stops to situations where he had articulable facts that the passersby were engaged in hunting activities. Therefore, this is not a roadblock case like Mesiani.

¶22 Reversed. We affirm the hearing officer and district court.

Sweeney, C.J., concurs.

1 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).