[No. 34439-4-II. Division Two. May 8, 2007.]
[1] Criminal Law Evidence Suppression Findings and Conclusions Review Standard of Review. A trial court's conclusions of law entered in support of an evidentiary ruling following a CrR 3.6 hearing are reviewed de novo. Findings of fact to which error is assigned are reviewed to determine whether they are supported by substantial evidence. Substantial evidence is evidence sufficient to persuade a fair-minded rational person of the truth of the finding. Unchallenged findings of fact are verities on appeal. The trial court's findings must support its conclusions of law. [2] Automobiles Traffic Infractions Passenger Scope and Degree of Intrusion Identification Request. Const. art. I, § 7 prohibits a law enforcement officer who has stopped a motor vehicle on suspicion that the driver has committed a traffic infraction from requesting identification from passengers for investigative purposes absent an independent basis justifying the request, such as an articulable suspicion of criminal activity. [3] Automobiles Arrest Seizure What Constitutes Request for Identification Passenger in Motor Vehicle. A passenger in a motor vehicle that has been stopped by a police officer on suspicion that the driver has committed a traffic infraction is "seized" by the officer for purposes of Const. art. I, § 7 if the officer requests identification from the passenger for investigatory purposes without having a reasonable basis for doing so, such as an articulable suspicion of criminal activity. [4] Searches and Seizures Exclusionary Rule In General. In general, evidence obtained as the result of an invalid seizure under Const. art. I, § 7 must be suppressed. [5] Searches and Seizures Fruit of Unlawful Search or Seizure Exclusionary Rule State Constitution In General. Under Const. art. I, § 7, all evidence obtained as a result of an unconstitutional search or seizure is fruit of the poisonous tree and must be suppressed, unless the evidence also is the product of a valid independent source. [6] Searches and Seizures Fruit of Unlawful Search or Seizure Independent Source. Evidence need not be suppressed under the "fruit of the poisonous tree" doctrine if the evidence also is the product of a valid independent source. [7] Criminal Law Evidence Suppression Independent Source Doctrine. Under the independent source exception to the exclusionary rule, evidence tainted by an unlawful government action is not subject to exclusion if the evidence ultimately is obtained pursuant to a valid warrant or other lawful means independent of the unlawful action. [8] Arrest Seizure What Constitutes Test In General. A person is "seized" by a law enforcement officer if a reasonable individual in the person's position would no longer feel free to terminate the contact and simply walk away. [9] Arrest Seizure Warrantless Seizure Validity Test. To justify a warrantless seizure of a person, a police officer must be able to point to specific and articulable facts giving rise to a reasonable suspicion that the person is engaged in criminal activity. [10] Automobiles Arrest Detention for Questioning Validity Test. A police officer's stop of a motor vehicle for a traffic infraction is valid only if the officer had, from the beginning, a reasonable articulable suspicion that the infraction occurred and the stop is reasonably related in scope to the circumstances that justified the interference in the first place. [11] Automobiles Arrest Detention for Questioning Scope and Degree of Intrusion Further Inquiry Validity Test. A police officer who has validly stopped a motor vehicle based on a traffic infraction may not subject the driver to further investigative questioning outside the scope of the initial traffic stop absent a lawfully acquired reasonable suspicion. [12] Arrest Probable Cause Necessity Custodial Arrest. Probable cause based on lawfully acquired information is required for a police officer to make a warrantless custodial arrest. [13] Searches and Seizures Incident to Arrest Custodial Arrest Valid Arrest Necessity. A custodial arrest must be lawful to justify a warrantless search incident to the arrest. An invalid arrest will not justify a warrantless search made incident to the arrest. [14] Searches and Seizures Incident to Arrest Invalid Arrest Effect. Evidence obtained in a warrantless search made incident to an unlawful arrest must be suppressed as fruit of the poisonous tree. HUNT, J. dissents by separate opinion. Nature of Action: Prosecution for one count of unlawful possession of a controlled substance and one count of violation of a no-contact order. The defendant was a passenger in a motor vehicle that was stopped by a police officer for failure to have a working license plate light. After learning that the driver had petitioned for a protection order and that there existed a no-contact order against an individual by the name of Ryan Allen, and after the defendant failed to produce any identification and gave a false name that was backed-up by the driver, the police officer asked the driver to step out of the vehicle and, in a conversation with the driver, the driver admitted that the passenger was Ryan Allen. After confirming the validity of the no-contact order, the officer arrested the defendant and searched the vehicle incident to the arrest. The controlled substance was found under the front passenger seat. Superior Court: The Superior Court for Lewis County, No. 05-1-00436-8, Nelson E. Hunt, J., entered a judgment of guilty on February 17, 2006. Court of Appeals: Holding that the officer exceeded the scope of the traffic stop when he asked the driver to step out of the vehicle and answer his questions, that the defendant was unlawfully seized, and that the information obtained from the driver did not provide an independent source of information sufficient to provide probable cause for the defendant's warrantless arrest, the court reverses the judgment and remands the case with instructions for the trial court to suppress the evidence. Jodi R. Backlund- and Manek R. Mistry- (of Backlund & Mistry), for appellant. Jeremy R. Randolph-, Prosecuting Attorney, and Lori E. Smith-, Deputy, for respondent. Ά1 HOUGHTON, C.J. Ryan Weston Allen appeals his conviction of one count of unlawful possession of a controlled substance, a felony, and one count of violation of a no-contact order, a gross misdemeanor. He argues that (1) the trial court erred by failing to suppress illegally obtained evidence and (2) he invalidly waived his right to a jury trial. Because the trial court erred in denying Allen's motion to suppress, we reverse and remand. FACTS Ά2 On the night of June 9, 2005, Officer Mike Lowrey of the Centralia Police Department stopped a car for failure to have a working license plate light. Peggy Allen drove the car and Allen rode as a passenger. Lowrey asked Peggy Ά3 Lowrey could see Allen but did not recognize him. Lowrey returned to his patrol car and checked Peggy's information. He learned that "she was . . . a [petitioner] in a protection order." Report of Proceedings (Nov. 18, 2005) at 16. Lowrey also learned that the no-contact order applied to Allen. Although Lowrey assumed the order named a male, he later admitted that he did not know the gender or description of the party restrained. Ά4 When he returned to the car, Lowrey asked Allen for identification. At the pretrial suppression hearing, Lowrey indicated, and the State argued, that he asked Allen for identification because he was investigating a potential violation of the no-contact order, the reasonable suspicion being that the passenger was a male and that the respondent to the no-contact order was presumably a male. Ά5 Allen replied that he did not have identification, and Lowrey then asked Allen's name. Both Peggy and Allen said that Allen's name was Ben Haney. Ά6 With this information, Lowrey returned to his patrol car and checked the name Ben Haney and the date of birth in the Oregon and Washington Computer Aided Dispatch (CAD) databases. The computer disclosed no record for that name and date of birth. Ά7 While waiting for a return on the information, Lowrey saw the passenger reach under the passenger seat. At this point, Lowrey returned to the vehicle driver's side and asked Peggy to leave the car, which she did. The two walked to the rear of the vehicle. Ά8 Lowrey told Peggy that he knew she had given a false name for the passenger and asked why. She said that there was a valid no-contact order against the passenger in the car. Lowrey asked Peggy for the passenger's name, and she stated that Lowrey already knew the name. When Lowrey asked again, she named Allen. Ά9 After confirming the validity of the no-contact order, another officer placed Allen under arrest and put him into a patrol car. A search of the car incident to arrest revealed a bag of methamphetamine under the front passenger seat. Ά10 The State charged Allen with one count of unlawful possession of a controlled substance, a felony, and one count of violation of a no-contact order, a gross misdemeanor. On November 18, the trial court held a pretrial CrR 3.6 hearing to determine what evidence, if any, should be suppressed. The trial court granted Allen's motion to suppress in part, ruling that (1) Lowrey lacked reasonable suspicion to investigate whether Allen was the restrained party in a no-contact order; (2) consequently, Lowrey's request for identification from Allen constituted an unlawful seizure under article I, section 7 of the Washington State Constitution; (3) Lowrey's later questioning of Peggy and her identification became an independent source of Allen's identification; (4) Allen did not have standing to assert Peggy's constitutional rights or violation thereof; and (5) excepting all evidence obtained directly or derivatively from Allen's unlawful seizure, Lowrey had probable cause to arrest Allen for violation of a no-contact order. Ά11 During the trial court's oral ruling on the matter, it noted that it found Lowrey's questioning of Peggy did not exploit the false name Lowrey obtained from Allen. Rather, the trial court reasoned that Lowrey was going to return to Peggy to issue a citation or release her; therefore, the inquiry formed an independent source of the identity evidence. Ά12 Allen waived his right to a jury trial. He stipulated to the facts of the case, and the trial court found him guilty as charged. He appeals. ANALYSIS Ά13 Allen contends that the trial court erred in denying his motion to suppress Peggy's identification of him. He asserts that when Lowrey detained Peggy by asking her to accompany him to the rear of the vehicle, Allen was also unlawfully detained, collaterally. Therefore, any information derived from that unlawful seizure, namely Peggy's identification of Allen, must be excluded. Allen also asserts that Peggy furthered his unlawful seizure and, therefore, he argues derivative evidence obtained through it must be excluded under the exclusionary rule as a fruit of the poisonous tree. Ά14 The trial court concluded that Lowrey lacked reasonable suspicion to seize Allen and investigate whether he was the restrained party in the no-contact order. But it also found that the identifying information obtained from Peggy formed an independent source of information and, therefore, need not be suppressed. Ά15 Allen alternatively argues that Lowrey unlawfully detained Peggy because he did not have reasonable suspicion to seize her beyond the scope of the initial traffic violation and when he began questioning her about the identity of her passenger, he exceeded the scope of his lawful detention. INDEPENDENT SOURCE RULE UNLAWFUL SEIZURE OF PEGGY Ά20 The trial court did not enter a conclusion of law regarding whether Peggy was unlawfully seized when Lowrey asked her to leave her car, asked her to come to the rear of the vehicle, and questioned her about the passenger's identity. Therefore, taking the unchallenged facts as verities on appeal, we must determine whether her detention was lawful and, if not, any evidence obtained therefrom cannot qualify as a "lawful means independent of the unlawful action." Gaines, 154 Wn.2d at 718 (emphasis added). Ά23 First, it cannot be said that Lowrey's later questioning of Peggy was within the scope of the original traffic violation. The State argues that it was within that scope because Lowrey would have had to return to her to either issue the traffic citation or tell her she was free to go. But this argument stretches logic. Asking Peggy to exit her car and accompany Lowrey to the rear of the vehicle, and asking twice to know the name of the passenger, goes well beyond a routine investigation of a traffic violation. This is essentially the fishing expedition that the exclusionary rule seeks to prohibit. Former RCW 46.64.015 (2004); State v. Reding, 119 Wn.2d 685, 835 P.2d 1019 (1992). Ά24 Second, Lowrey did not have a lawful basis for a reasonable suspicion that the passenger was Allen when he asked Peggy to come to the rear of the vehicle. At this point, Lowrey had a reasonable suspicion because the false name Ben Haney did not register on the CAD databases. But this evidence was derived from Allen's unlawful seizure and inquiry and, therefore, it must be excised from the review of Lowrey's reasonable suspicion. ALLEN'S ARREST AND SEARCH INCIDENT TO ARREST Ά27 We reverse Allen's convictions and remand with instructions for the court to suppress the evidence. ARMSTRONG, J., concurs. Ά28 HUNT, J. (dissenting) I agree with the majority and the trial court that (1) Officer Lowery did not have a lawful basis for detaining Allen, who was a passenger in Peggy's vehicle stopped for a traffic infraction and (2) Lowery's questioning of Allen about his identity was an unlawful seizure, based on our Supreme Court's controlling decision in State v. Rankin, 151 Wn.2d 689, 699, 92 P.3d 202 (2004). Nonetheless, in my view, Peggy was an independent source of information, i.e., Allen's name, that led to his arrest for violation of the no contact order; and Allen lacked standing to challenge the constitutionality of Peggy's detention, during which Lowery questioned her about Allen's true identity and she disclosed his real name. Therefore, I respectfully dissent from the majority's suppression of the evidence seized during the search of Allen incident to his arrest for violating the no contact order protecting Peggy. I. INDEPENDENT SOURCE RULE Ά29 I agree with the majority's recitation of our Supreme Court's explanation of Washington's independent source rule: Under the independent source exception, evidence tainted by unlawful governmental action is not subject to suppression under the exclusionary rule, provided that it ultimately is obtained pursuant to a valid warrant or other lawful means independent of the unlawful action. State v. Gaines, 154 Wn.2d 711, 718, 116 P.3d 993 (2005) (emphasis added). See also State v. Rothenberger, 73 Wn 2d 596, 440 P.2d 184 (1968) (identification evidence obtained during unlawful traffic stop did not defeat subsequent lawful arrest based on independent records check revealing that defendant had outstanding felony warrant). Ά30 But a majority of our Supreme Court has neither squarely addressed nor decided the context within which a court is to determine the lawfulness of the means independent of the unlawful actionwho may assert that the independent source is unlawful and under what circumstances. The law is replete with examples of actions that are legal as between two people and illegal as between two others; typically, only the person arguably harmed can assert the illegality. Ά31 I would hold that a person, such as Allen, can defeat the independent source rule only if the independent source violated a legal right personal to him. In other words, Allen cannot assert that police action violating Peggy's Fourth Amendment rights was also unlawful with respect to him when this police action did not similarly violate any of his personal rights. Ά32 We confront an issue of first impression: For purposes of the independent source exception to the exclusionary rule, must the independent information be obtained from a lawful source in a universal sense or must it be obtained only in a manner that is not unlawful with respect to the defendant against whom the independent information or evidence is used? In my view, the law supports the latter result. II. STANDING Ά33 Resolution of this issue focuses on standing. Again, however, Washington courts have not articulated who has standing to challenge the lawfulness of information obtained from an independent source for purposes of this exception to the exclusionary rule. Ά34 As our Supreme Court has noted: [T]he alleged intrusion of which Mr. Jones complains is the search of Ms. Gale's purse. Mr. Jones does not claim ownership of the purse and therefore he lacks standing to challenge the search unless he is entitled to assert automatic standing. A person may rely on the automatic standing doctrine only if the challenged police action produced the evidence sought to be used against him. State v. Jones, 146 Wn.2d 328, 332, 45 P.3d 1062 (2002). Defendant Kurt Jones was stopped for a traffic violation and subsequently arrested on an outstanding warrant. After Jones was arrested, deputies searched his passenger's purse and seized a firearm found in the purse. Prior to trial, Jones moved to suppress the firearm. The trial court denied Jones's motion, and Jones was convicted of unlawful possession of a firearm. Jones appealed, arguing that the police unlawfully searched his passenger's purse. The Court of Appeals affirmed Jones's conviction. We hold that the search of a passenger's purse is not justified incident to a driver's arrest absent evidence that the passenger's purse was in the immediate control of the driver. Ά35 Here, in contrast, the police action that Allen challenges is the detention and questioning of Peggy. But this challenged action did not produce the illegal drug evidence that resulted in Allen's conviction. Rather, the unlawful detention of Peggy produced only Allen's true name, which led to his arrest for violation of the no contact order. This evidence of Allen's true name was not used against him, however, for the illegal drug possession charge. Moreover, violation of a no contact order is not a possessory offense, a prerequisite for assertion of automatic standing. Thus, Allen had no standing, either "regular" or automatic, to challenge the illegality of Lowery's detention of Peggy following the traffic stop. Ά36 That the police seized illegal drugs during their search of Allen incident to his arrest for violating the no contact order does not confer any type of standing on him to challenge Peggy's detention, which, as I note above, led only to discovery of his true name, his identity. As our Supreme Court noted in Jones, "Automatic standing is not a 'vehicle to collaterally attack every police search that results in a seizure of contraband or evidence of a crime.' " Jones, 146 Wn.2d at 334 (quoting State v. Williams, 142 Wn.2d 17, 23, 11 P.3d 714 (2000). [T]he defendant fails to meet the criteria for application of the automatic standing doctrine. The defendant stipulated that the police officers found the heroin on his person. The defendant has standing to object to an illegal search of his person. But, the defendant does not challenge the search of his person, which was a valid search incident to his arrest under a valid arrest warrant. He is challenging only the officers' entry into a third party's residence to serve the arrest warrant. The defendant's ability to challenge that entry does not depend upon his admission to possession of contraband or to any other illegal activity. We cannot agree that the automatic standing rule as originally conceived by the Supreme Court would have any application where there is no conflict in the exercise of his Fourth and Fifth Amendment rights. State v. Williams, 142 Wn.2d 17, 23, 11 P.3d 714 (2000). Ά37 In the absence of contrary authority, I would apply our Supreme Court's limiting language in Jones to the independent source rule, both in general and here, as follows: (1) violation of a no contact order is not a possessory offense, which is generally a prerequisite to a defendant's ability to assert automatic standing and (2) even assuming that Lowery obtained Allen's true identity during his illegal detention of the driver, beyond the scope justified by the traffic stop, I agree with the trial court that passenger Allen lacked standing to challenge such violation of the driver's constitutional rights. In short, Lowery used Peggy as an independent source of information about Allen's true identity to establish probable cause to arrest Allen for violation of the court order prohibiting him from being in contact with Peggy. Ά38 Our Supreme Court has held that questioning a passenger about his identity, without a sufficient independent basis reasonably shifting suspicion to the passenger, exceeds the scope of the traffic stop of the driver. Rankin, 151 Wn.2d at 691 (a case on which the majority relies). But our Supreme Court has not similarly addressed or ruled on the passenger's right to challenge the legality of questioning the driver about the passenger's identity, not in Rankin or in any other case. Again, there is no case law holding that an action unlawful with respect to one person is necessarily unlawful with respect to another. On the contrary, search and seizure case law focuses on the rights of individuals, their reasonable expectations of privacy against unwarranted governmental intrusion, and the very personal nature of those rights with respect to who can exercise them. Ά39 I respectfully disagree with the majority's holding that because the police detention of Peggy was unlawful as to her, the information they obtained from her about Allen's identity made this inquiry an unlawful source with respect to Allen. I would hold that (1) the independent source rule applies here to legitimize Lowery's obtaining Allen's true identity from Peggy, (2) Lowery's arrest of Allen was supported by probable cause to believe that Allen was in violation of a court order that he have no contact with Peggy, (3) the police lawfully seized illegal drugs from Allen during a search incident to his arrest, and (4) the trial court properly denied Allen's motion to suppress these drugs. I would affirm.