[No. 25280-9-III. Division Three. April 29, 2008.]
[1] Criminal Law — Evidence — Suppression — Findings of Fact — Review — Standard of Review. Findings of fact entered by a trial court in support of a ruling on a motion to suppress evidence are reviewed under the substantial evidence standard. Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the truth of the finding. [2] Criminal Law — Evidence — Suppression — Conclusions of Law — Review — Standard of Review. Conclusions of law entered by a trial court in support of a ruling on a motion to suppress evidence are reviewed de novo. [3] Searches and Seizures — Warrantless Search — Validity — In General. A warrantless search violates Const. art. I, § 7 if it cannot be justified by a recognized exception to the warrant requirement. [4] Searches and Seizures — Automobiles — Warrantless Search — Incident to Arrest of Occupant — Scope — Passenger Compartment. Incident to the arrest of a person in possession of a motor vehicle, the police may conduct a warrantless search of the passenger compartment of the vehicle for weapons or destructible evidence. [5] Searches and Seizures — Incident to Arrest — Pretext To Search — Validity. An arrest may not be used as a pretext to search for evidence of a crime. [6] Automobiles — Arrest — Traffic Violation — Pretext To Search — Validity — In General. A police officer may not stop a motor vehicle on the pretext of a traffic infraction in order to investigate for a sufficient reason to search even further for evidence of a crime. [7] Automobiles — Arrest — Traffic Violation — Pretext To Search — Fruit of Unlawful Search or Seizure. Evidence obtained as the result of a pretextual traffic stop becomes fruit of the poisonous tree and must be suppressed as derivative of an unconstitutional seizure. [8] Automobiles — Arrest — Traffic Violation — Detention for Questioning — Validity — Reasonableness — What Constitutes. The validity of a traffic stop is determined by whether the driver's commission of a traffic offense justifies a warrantless seizure that would not otherwise be permitted absent the "authority of law" represented by a warrant. [9] Automobiles — Arrest — Traffic Violation — Pretext To Search — Test. For purposes of determining whether a traffic stop was made by a police officer as a pretext to search for evidence of another crime, a court considers the totality of the circumstances surrounding the stop, including the officer's subjective intent and the objective reasonableness of the officer's behavior. The State must show that the officer, both subjectively and objectively, was actually motivated by a perceived need to make a community caretaking stop aimed at enforcing the traffic code. It is not enough for the State to show that there was a traffic violation; the question is whether the traffic violation was the real reason for the stop. [10] Automobiles — Arrest — Traffic Violation — Detention for Questioning — Validity — Stop for Headlight Infraction After Headlights Turned On. Once a motorist has activated the vehicle's headlights at night, it is not reasonable for a police officer to stop the motorist for initially failing to do so. [11] Automobiles — Arrest — Traffic Violation — Pretext To Search — Factors — Failure To Issue Citation. In determining whether a law enforcement officer's stop of a motor vehicle was for a pretextual reason, the officer's failure to issue a citation for the underlying infraction is one of the factors to be considered when assessing objective reasonableness, but it is not dispositive. [12] Searches and Seizures — Fruit of Unlawful Search or Seizure — Exclusionary Rule — In General. Under Const. art. I, § 7, courts must suppress all evidence obtained as a result of an unconstitutional search or seizure. Nature of Action: Prosecution for unlawful possession of a controlled substance and first degree unlawful possession of a firearm. Police officers discovered evidence of the crimes after the defendant was arrested for driving a motor vehicle without a valid driver's license. The arrest came after the vehicle was stopped by a police officer who had observed the vehicle and its occupants in a store parking lot and who watched as the vehicle was driven onto a public street, in the dark, without its headlights illuminated. Superior Court: The Superior Court for Chelan County, No. 05-1-00566-2, Ted W. Small, J., on June 12, 2006, entered a judgment of guilty based on stipulated facts. Court of Appeals: Holding that the traffic stop constituted an unlawful pretextual stop and that the evidence discovered subsequent to the stop should have been suppressed, the court reverses the judgment. Susan M. Gasch- (of Gasch Law Office), for appellant. Gary A. Riesen-, Prosecuting Attorney, and James A. Hershey-, Deputy, for respondent. ¶1 SCHULTHEIS, C.J. — An unlawful pretext stop occurs when an officer stops a vehicle in order to conduct a speculative criminal investigation unrelated to the driving, and not for the purpose of enforcing the traffic code. State v. Ladson, 138 Wn.2d 343, 349, 351, 979 P.2d 833 (1999). Here, after viewing the suspicious behavior of occupants of a van in a parking lot, an officer decided to surveil the parties. The van left the parking lot without its headlights on. The officer followed. After the headlights were turned on a short time later, the officer pulled the van over. We conclude that this constitutes a pretext stop. Accordingly, we reverse. FACTS ¶2 On October 25, 2005, Sergeant Kevin Dresker of the Wenatchee Police Department was in a Walgreen's parking lot speaking with a gentleman whose daughter had run away. During this conversation, Sergeant Dresker saw Jesus Montes-Malindas and two other people in a van, acting nervously. One of the men in the van got out and into another occupied car, and left the area. Mr. Montes-Malindas then switched places with the occupant in the driver's seat. ¶3 After concluding talking with the father of the runaway, Sergeant Dresker decided to watch the van occupants. He drove to a car dealership across the street from Walgreen's and parked so that he could not be seen by the van occupants. He saw the occupants of the van go into Walgreen's and leave the store a few minutes later with a female. The parties returned to the van and drove south on Miller Street, passing the car dealership where Sergeant Dresker was parked. ¶4 When the van pulled out of the parking lot onto Miller Street, Sergeant Dresker noticed that the headlights of the van were not illuminated, although it was dark. As the van passed, Sergeant Dresker pulled out and got behind the van. The driver then turned the headlights on. The van had driven about 100 yards without its lights illuminated. ¶5 Sergeant Dresker then radioed in that he was going to stop the van and turned his overhead lights on to initiate the stop. Mr. Montes-Malindas turned the next corner and stopped. ¶6 Sergeant Dresker decided to approach the van from the passenger side for safety reasons. He later explained that, in addition to protection from traffic, the occupants would not expect such an approach and he could better see into the passenger area. Sergeant Dresker noted that the male rear seat passenger was not wearing a seatbelt. The female front seat passenger told him the van was hers and she had no insurance. Both passengers provided identification to the officer. ¶7 As another officer arrived, Sergeant Dresker moved to the driver's side. Mr. Montes-Malindas told Sergeant Dresker that he did not have a driver's license and that he did not have any identification. Because of his lack of license and identification, combined with the suspicious activity he saw in the parking lot, the officer decided to be cautious. He therefore refused to allow a passenger to get out of the van. Mr. Montes-Malindas initially gave Sergeant Dresker a false name. Sergeant Dresker arrested Mr. Montes-Malindas for having no valid operator's license. ¶8 The female passenger was removed from the van and checked for weapons. There were none. The male passenger became nervous and started shaking during his pat-down. The officer found some narcotics paraphernalia on his person and arrested him for possession. ¶9 A firearm was found in the vehicle during a search of the van incident to arrest. In his patrol car the officer found a residue-filled baggie that contained crystal methamphetamine, which Mr. Montes-Malindas had in his hand when he was arrested. Mr. Montes-Malindas was charged, among other things, with possession of methamphetamine and first degree unlawful possession of a firearm. ¶10 Prior to trial, defense counsel filed a motion to suppress, contending that the stop was pretextual and therefore illegal. The trial court denied the suppression motion. ¶11 Mr. Montes-Malindas was found guilty of unlawful possession of a firearm in the first degree and possession of methamphetamine after a bench trial on stipulated facts. This appeal followed. DISCUSSION ¶17 The State argues that, because the trial court found that Sergeant Dresker was credible in his testimony that he did not follow the van hoping to find a legal reason to stop it and his subjective intent was to stop the van and cite the driver for not having his headlights on, Sergeant Dresker's testimony about his own subjective intent is dispositive. ¶18 In Ladson, the Washington Supreme Court rejected the purely objective test for pretext stops because "an objective test may not fully answer the critical inquiry: Was the officer conducting a pretextual traffic stop or not?" Ladson, 138 Wn.2d at 359 (overruling State v. Chapin, 75 Wn. App. 460, 464, 879 P.2d 300 (1994) (objective test)). The court therefore added a subjective component to the test: "When determining whether a given stop is pretextual, the court should 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." Id. at 358-59. ¶19 But by enhancing the test with a subjective feature, the court did not eliminate the objective considerations. Instead, the test announced in Ladson made it easier for courts to find that a stop was pretextual based on the totality of the circumstances rather than only the objective circumstances, regardless of an admission of any pretextual subjective reasons for the stop. The Ladson court recognized that an officer's candid admission to pretextual conduct is more probative than the denial of the conduct. Id. at 359; see, e.g., DeSantiago, 97 Wn. App. at 452-53 (reversing conviction when, despite the trial court's finding that the officer " 'wanted to identify [Mr. DeSantiago's] license plate and was looking for a basis to stop the vehicle,' " it denied the suppression motion); State v. Myers, 117 Wn. App. 93, 94-95, 69 P.3d 367 (2003) (reversing conviction where officer admitted that he pulled a driver over to check if the driver's license was suspended, rather than to cite the driver for making two lane changes while signaling simultaneously). Thus, "[i]t is not enough for the State to show that there was a traffic violation. The question is whether the traffic violation was the real reason for the stop." State v. Meckelson, 133 Wn. App. 431, 437, 135 P.3d 991 (2006) (citing Ladson, 138 Wn.2d at 358-59), review denied, 159 Wn.2d 1013 (2007). ¶20 Here, besides stating that the stop was made only because of the delayed engagement of the headlights, Sergeant Dresker also stated that he was suspicious of the activity that he saw in the parking lot, and that those suspicions probably were on his mind when he decided to pull over the van and approach on the passenger side, rather than the driver side. And he spoke to the passengers first, rather than to the driver, suggesting that the stop was premised on more than the driver's actions. ¶21 These facts suggest that Sergeant Dresker was not on routine patrol; he was conducting surveillance on the van. DeSantiago, 97 Wn. App. at 452-53 (that the officer was assigned to routine patrol was not material when the officer was actually surveilling a narcotics hot spot); see also Myers, 117 Wn. App. at 97 (whether an officer was on routine patrol is not dispositive). ¶23 No evidence was presented to indicate the presence of other traffic on the roadway or the existence of endangerment to pedestrians or property resulting from Mr. Montes-Malindas's brief roadway travel without his headlights on. He pulled onto the street in front of a business and traveled about 100 yards, apparently without interfering with any other vehicular or pedestrian traffic, before turning his headlights on. ¶24 Backup arrived as the officer was speaking to Mr. Montes-Malindas. Obviously, the additional officer arrived in response to the radio call. This suggests, as does his decision to proceed with caution, that Sergeant Dresker was preparing for something more than a traffic stop. ¶25 Based on the totality of the circumstances, we conclude that this was an unlawful pretext stop. ¶27 We reverse the conviction. Accordingly, we need not address the other issues raised by Mr. Montes-Malindas, including the validity of his arrest, the legitimacy of the search of the passenger, and the validity of the search of the van. KULIK, J., and STEPHENS, J. PRO TEM., concur.