State v. Quezadas-Gomez , 165 Wash. App. 593 ( 2011 )

Hunt, J.

¶1 The State appeals the superior court’s CrR 3.6 order suppressing evidence, which resulted in pretrial dismissal without prejudice of the charge against Eduardo Quezadas-Gomez for possessing a controlled substance with intent to deliver. The State argues that (1) the officer’s stop of Quezadas-Gomez’s vehicle to obtain his name and address was lawful because the officer had probable cause to believe that Quezadas-Gomez had engaged in illegal delivery of controlled substances; (2) the trial court erred in ruling that the vehicle stop was “pretextual,” which the trial court also ruled rendered illegal the officer’s use of Quezadas-Gomez’s name and address to obtain the search warrant; and (3) thus, the trial court erred in suppressing the evidence seized during execution of the search warrant. Quezadas-Gomez does not dispute that the officer had probable cause to arrest him at the time of the controlled buys; instead, he focuses on arguing that the probable cause authorized only an arrest, which the officer did not make, and that the stop was an unlawful pretextual stop, which justified the trial court’s suppression of the evidence.

¶2 We hold that (1) the stop was not pretextual; (2) the officer had probable cause to arrest Quezadas-Gomez for the controlled buys he had witnessed and, therefore, could stop the vehicle to speak with Quezadas-Gomez; and (3) the officer thus lawfully obtained Quezadas-Gomez’s true name and address. Accordingly, we reverse the trial court’s suppression of evidence, and we remand for trial.

FACTS

I. Possession with Intent To Deliver

A. Controlled “Buys”; Probable Cause To Arrest

¶3 From July 22 to July 25, 2009, a confidential informant (Cl) working with Vancouver Police Officer Ryan Demmon conducted several controlled drug buy operations. The Cl telephoned a man known as “El Gordo,” set up drug “buys” at specified locations, contacted “El Gordo” at these locations, purchased cocaine from “El Gordo” using prerecorded money from the police, and turned the cocaine over to Demmon.¹ Clerk’s Papers (CP) at 17.

¶4 The Cl had previously described “El Gordo” to Demmon as a “Hispanic male, about thirty years old, about 6'00["] tall and about 250 pounds in weight.” CP at 17. During the controlled buys, Demmon watched the Cl enter the prearranged locations and observed a man fitting “El Gordo’s” description arrive in a silver Nissan Sentra with Oregon plates numbered 902DQU and enter the premises where the Cl’s drug transactions took place. CP at 17. After the Cl returned, Demmon asked the Cl to describe “El Gordo,” and the Cl described the man Demmon had seen arrive in the silver Nissan Sentra. CP at 17.

B. Investigatory Stop

¶5 Nine days later, on August 4, Demmon was on “uniformed patrol” when he “observed the subject described as El Gordo driving the same Nissan [sic] Sentra” and stopped the car “for the purpose of identifying [the driver] as a suspect in [the drug] investigation.”² CP at 18. The driver identified himself as Eduardo Quezadas-Gomez and stated his address as 3412 Northeast 66th Avenue, number C29, Vancouver, Washington, and then drove away.³

C. Search Warrant

¶6 Demmon and other officers conducted additional controlled drug buy operations, using Quezadas-Gomez’s address to observe Quezadas-Gomez going from his residence to the specified controlled “buy” location on at least one occasion. CP at 18. Demmon incorporated Quezadas-Gomez’s name and address and other information he had obtained during the earlier controlled buys and the poststop surveillance of Quezadas-Gomez’s residence to draft an affidavit for a warrant authorizing the search of Quezadas-Gomez’s person, his residence, and two cars. Executing the search warrant, the officers found drugs and a variety of materials suggesting drug sale activities.

II. Procedure

¶7 The State charged Quezadas-Gomez with unlawful possession of a controlled substance with intent to deliver, with a school-bus-route-stop sentencing enhancement. Quezadas-Gomez moved to suppress the evidence the police had seized with the search warrant, arguing that the vehicle stop that led to his identification was an unlawful pretextual stop under Ladson⁴ and, therefore, any evidence flowing from the “pretextual-stop” discovery of his identity and address was unlawful. The State responded that the vehicle stop was not pretextual but, rather, an investigatory stop, supported by “reasonable suspicion (if not probable cause).” CP at 34.

¶8 At the CrR 3.6 hearing, Demmon testified that he had authored the search warrant affidavit and that he had obtained utility records for Quezadas-Gomez’s residence. The trial court reviewed the search warrant, the search warrant affidavit, and the search warrant return. The trial court determined that the identification information Demmon had obtained during the vehicle stop was critical to the subsequent surveillance of Quezadas-Gomez and the probable cause recited in the search warrant affidavit. The trial court orally ruled:

While there was probable cause and there was a belief in previous criminal activity having been committed, the stop

itself was of an investigatory nature that was not related to any then occurring allegations of criminal violations. If the appellate courts wish to establish an exception to the [pretextual] stop area of law, I think that would be up to them to provide that. It’s my duty to follow the law as I interpret it and I’m not aware of an exception to the [pretextual] stop.

If he had been arrested, he would have had certain rights in connection with that, such as Miranda^[5] warnings, right to an attorney and so on that would have taken place, which did not occur as a result of this. So there is some reason to think that when the occurring—the then occurring circumstances of a [Terry^[6]] stop are non-existent that—that a [pretextual] stop is not appropriate.

Report of Proceedings at 26 (emphasis added).

¶9 In finding of fact 4 of its written findings of fact and conclusions of law, the trial court stated:

The warrant makes reference to having controlled buys from the defendant on July 22nd through July 25,2009 .... Without any subsequent contact between law enforcement and the defendant, the warrant reports that on August 4, 2009, Officer Demmon observed the subject he recognized as delivering cocaine during the previous controlled buy. Officer Demmon recognized the vehicle as the same car used in the controlled buy. The officer was on uniformed patrol at the time and conducted a traffic stop for the purpose of identifying him as a suspect of his investigation. By this method, the officer’s [sic] learned the defendant’s address and name. The sole purpose of the stop was to identify the suspect. No citation for a traffic infraction was issued. There is no information defendant was in possession of contraband or had contraband at that time or was committing a crime at that time.

CP at 61.

¶10 In conclusion of law 2, the trial court stated:

Officer Demmon stopped the defendant for the sole purpose of obtaining his identification and residence, this was a pretext stop. A traffic infraction had not been committed. The most recent information they had concerning alleged controlled substance activities dealing with a confidential informant was on the 25th, some 9 days earlier. There was no reason to believe that defendant at the time of the stop was committing a crime or had evidence of a crime to fit within the exception of the search warrant requirement authorized by Terry v. Ohio, 5 Ohio App.2d 122, 214 N.E.2d 114 (1966)^[7] [sic], or in State v. Markham, 40 Wn. App. 75 (April 2009)^[8] [sic]. Because the controlled buy occurred nine days earlier there is no reason to believe the suspect is currently committing or recently committing an illegal act where evidence would be found on his person or in the car. Information gained through the illegal conduct, defendant’s identification and his address, serve as a basis for subsequent investigation and cannot be excised from the search warrant and still have probable cause for issuance of a search warrant.

As a result, all evidence seized with the search warrant is suppressed.

CP at 62.

¶11 After the trial court suppressed the evidence, it granted the State’s motion for dismissal of the charge against Quezadas-Gomez without prejudice. The State appeals the trial court’s suppression of evidence.

ANALYSIS

¶12 The State argues that the trial court erred when it concluded that the vehicle stop was an unlawful pretextual stop under Ladson, 138 Wn.2d at 349-51, because (1) Demmon had probable cause to arrest Quezadas-Gomez at the time of the stop (based on Quezadas-Gomez’s participation in the prior controlled drug sales and reasonable suspicion that Quezadas-Gomez’s involvement in illegal drug sales was ongoing) and (2) the stop was a lawful investigative detention under Terry, 392 U.S. I.⁹ We agree.

I. Standard of Review

¶13 We review a trial court’s ruling on a motion to suppress evidence to determine (1) whether substantial evidence supports the trial court’s factual findings, and (2) whether the factual findings support the trial court’s conclusions of law. State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009). “Evidence is substantial when it is enough ‘to persuade a fair-minded person of the truth of the stated premise.’ ” Garvin, 166 Wn.2d at 249 (quoting State v. Reid, 98 Wn. App. 152, 156, 988 P.2d 1038 (1999)). We consider any unchallenged findings of fact as verities on appeal. State v. Valdez, 167 Wn.2d 761, 767, 224 P.3d 751 (2009) (citing State v. Gaines, 154 Wn.2d 711, 716, 116 P.3d 993 (2005)). And we review the trial court’s conclusions of law de novo. Garvin, 166 Wn.2d at 249.

II. Not a Pretextual Traffic Stop

¶14 We first address whether the trial court properly determined that Demmon’s stop of Quezadas-Gomez’s car was pretextual under Ladson. A traffic stop is pretextual when an officer stops a vehicle, under the guise of enforcing the traffic code, to conduct an investigation unrelated to driving. Ladson, 138 Wn.2d at 349-51. Pretextual stops “generally take the form of police stopping a driver for a minor traffic offense to investigate more serious violations—violations for which the officer does not have probable cause.” State v. Myers, 117 Wn. App. 93, 94-95, 69 P.3d 367 (2003), review denied, 150 Wn.2d 1027 (2004). Such stops violate article I, section 7 of the Washington State Constitution because “they are seizures absent the ‘authority of law’ which a warrant would bring.” Ladson, 138 Wn.2d at 358 (quoting Wash. Const, art. I, § 7). Although the police may enforce the traffic code, “[t]hey may not . . . use that authority as a pretext or justification to avoid the warrant requirement for an unrelated criminal investigation.” Ladson, 138 Wn.2d at 357.

¶15 To determine whether a stop is pretextual, courts consider the totality of the circumstances, including the officer’s subjective intent and the objective reasonableness of the officer’s conduct. Ladson, 138 Wn.2d at 358-59. Generally, if the trial court finds that the stop was pretextual, all subsequently obtained evidence from the stop must be suppressed. Ladson, 138 Wn.2d at 359. The trial court correctly noted Ladson’s rationale:

We begin our analysis by acknowledging the essence of this, and every, pretextual traffic stop is that the police are pulling over a citizen, not to enforce the traffic code, but to conduct a criminal investigation unrelated to the driving. Therefore the reasonable articulable suspicion that a traffic infraction has occurred which justifies an exception to the warrant requirement for an ordinary traffic stop does not justify a stop for criminal investigation.

138 Wn.2d at 349. We disagree, however, with the trial court’s application of this rationale to the facts here.

¶16 Demmon’s search warrant affidavit established that his sole intent in stopping Quezadas-Gomez was to investigate the drug sales in which he had observed Quezadas-Gomez participating and for which he needed Quezadas-Gomez’s name and address. Demmon never purported to use any traffic code violation as a pretext for the stop. Neither Ladson nor any other Washington case that the parties cite, or of which we are aware, address the

apparently unique circumstances here:¹⁰ where law enforcement acquires probable cause before an investigative stop, conducts the investigative stop for the sole purpose of obtaining identifying information to be used to further the investigation, and then releases the suspect and continues the investigation. Thus, this case presents an issue of first impression.* ¹¹

¶17 As we have already explained, Demmon had probable cause to arrest Quezadas-Gomez for delivering cocaine to the CL But, despite having probable cause to arrest Quezadas-Gomes, whom Demmon knew only by the nickname “El Gordo,” Demmon decided to stop him only to obtain his true name and address so that Demmon could conduct surveillance on “El Gordo’VQuezadas-Gomez’s residence and eventually obtain a warrant to search his house. In our view, because the greater intrusion of an arrest was legally justified, then this lesser intrusion of a mere stop to ask for name and address¹² was also legally justified; and we so hold.

¶18 This stop, therefore, did not meet the Ladson criteria for suppressing the evidence eventually obtained with the search warrant. The stop was not based on a traffic code violation pretext.¹³ And collecting Quezadas-Gomez’s name and address to advance an ongoing criminal investigation did not negate the officer’s probable cause to intrude lawfully on Quezadas-Gomez’s privacy, whether to effect a full-scale arrest or to effect some lesser intrusion, such as briefly speaking with Quezadas-Gomez and allowing him to drive away.

¶19 Even by Demmon’s own testimony, the record is clear that he did not stop Quezadas-Gomez’s car to enforce the traffic code; nor does the record suggest in any way that Demmon used the traffic code as a pretext for the stop. On the contrary, Demmon expressly stated that he stopped the car only to obtain the true name and address of the driver, whom he recognized as “El Gordo,” the drug dealer in the Cl’s controlled “buys.” And, as we have already noted, the record shows that Demmon had probable cause to arrest Quezadas-Gomez at the time of this stop.¹⁴ Thus, the record does not support the trial court’s conclusion that the stop was a pretextual traffic stop.

¶20 We hold, therefore, that (1) because Demmon had probable cause to arrest “El Gordo,” the lesser intrusion of this investigatory stop to obtain Quezadas-Gomez’s true name and address was lawful; and (2) the evidence was subsequently lawfully seized under the search. Accordingly, we reverse the trial court’s suppression of the evidence and remand for trial.

Penoyar, C.J., concurs.

1 The Cl had informed Demmon that “El Gordo” was known to distribute drugs at specific local restaurants, that he had sold drugs to others known to the Cl, and that “El Gordo” had previously sold drugs to the CL Clerk’s Papers at 17.

2 Demmon observed no traffic violations, did not stop the Nissan Sentra for such purpose, and issued no traffic citation.

3 Demmon did not pat down Quezadas-Gomez, search his person, search his car, or find and seize any contraband.

4 State v. Ladson, 138 Wn.2d 343, 979 P.2d 833 (1999).

[5] 5 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

[6] 6 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

[7] 7 The trial court likely intended to cite Terry, 392 U.S. at 1, rather than State v. Terry, 5 Ohio App. 2d 122, 214 N.E.2d 114 (1966), aff’d, 392 U.S. 1 (1968).

[8] 8 The trial court likely intended to cite State v. Marcum, 149 Wn. App. 894, 205 P.3d 969 (2009), a case that discusses Terry stops, rather than State v. Markham, 40 Wn. App. 75, 697 P.2d 263, review denied, 104 Wn.2d 1003 (1985), which did not involve these issues.

9 Unlike the dissent, because we hold that Demmon had probable cause to arrest Quezadas-Gomez when he (Demmon) stopped the car, (1) we do not also address whether this investigatory stop was independently lawful under Terry, and (2) we need not address United States v. Hensley, 469 U.S. 221, 223, 227, 229, 105 S. Ct. 675, 83 L. Ed. 2d 604 (1985), on which the dissent relies in part.

10 See, e.g.,Hiibel v. Sixth Judicial District Court, 542 U.S. 177, 124 S. Ct. 2451, 159 L. Ed. 2d 292 (2004) (Nevada “stop and identify statute” requiring individuals to identify themselves to officers during investigative stops does not violate Fourth Amendment when initial stop is based on reasonable suspicion; addressing statute in the context of a contact occurring immediately following a report of a possible assault); Hensley, 469 U.S. at 223-24 (officers stop a vehicle and detain the people in the vehicle to facilitate investigation of offense that occurred approximately a week earlier in a neighboring county); State v. Kennedy, 107 Wn.2d 1,726 P.2d 445 (1986) (reasonable suspicion justified stop as defendant left known drug house, where confidential informant had advised officers that defendant went to the house only to buy drugs); Marcum, 149 Wn. App. at 899-909 (stop, investigative detention, and arrest were lawful when officers stopped defendant leaving his home to deliver marijuana to a confidential informant); State v. Serrano, 14 Wn. App. 462, 544 P.2d 101 (1975) (stop and temporary detention appropriate based on officer’s suspicion at the time of the stop that car could have been tampered with or stolen).

11 Thus, the dissent correctly asserts that we “cite[ ] no case law establishing that police have the authority, once probable cause is established, to stop and detain a suspect solely to expand the non-traffic-related investigation.” Dissent at 605. Accordingly, our holding here is new: Probable cause for the greater intrusion of an arrest encompasses legal justification for the lesser intrusion of a mere stop; and, therefore, no independent Terry analysis is necessary.

12 Although the dissent asserts that “the degree of intrusion Officer Demmon used to identify Quezadas-Gomez and Quezadas-Gomez’s address was significant,” it does not dispute our assertion that the degree of intrusion would have been vastly more significant had Demmon arrested Quezadas-Gomez and taken him to jail. Dissent at 607.

13 Because this stop was not based on any alleged traffic code violation, we respectfully disagree with the dissent’s pretextual stop analysis.

14 Because Demmon had preexisting probable cause to arrest Quezadas-Gomez, we respectfully disagree with the dissent’s conclusion that the State also had to establish that Demmon suspected that Quezadas-Gomez was engaged in or about to be engaged in criminal activity when the stop occurred, particularly here, where the intrusion on Quezadas-Gomez’s liberty was brief and minimal in comparison with the far more pervasive restraint on liberty that an arrest would have entailed.