[No. 78497-3. En Banc.]
Argued March 15, 2007. Decided July 19, 2007.
[1] Criminal Law — Right to Counsel — Effective Assistance of Counsel — Test. A criminal defendant claiming ineffective assistance of counsel must show that counsel's conduct was deficient and that the deficient performance was prejudicial. To show deficient representation, the defendant must show that the representation fell below an objective standard of reasonableness, as determined on the basis of the totality of the circumstances. In assessing counsel's performance, the court must make every effort to eliminate the distorting effects of hindsight. Prejudice is established if the defendant shows that there is a reasonable probability that, but for counsel's unprofessional errors, the outcome of the proceeding would have been different. [2] Automobiles — Arrest — Traffic Violation — Pretext To Search — Test. A pretextual traffic stop is one in which a police officer stops a motor vehicle in order to conduct a speculative criminal investigation unrelated to the driving and not for the purpose of enforcing the traffic code. To determine whether a traffic stop is pretextual, the totality of the circumstances must be considered, including the subjective intent of the officer and the objective reasonableness of the officer's behavior. [3] Automobiles — Arrest — Traffic Violation — Detention for Questioning — Validity — Criminal Investigation. A reasonable articulable suspicion that a traffic infraction has occurred will justify an ordinary warrantless traffic stop but will not justify a stop for a criminal investigation. [4] Automobiles — Arrest — Traffic Violation — Pretext To Search — Validity. A warrantless pretextual traffic stop constitutes an intrusion into a citizen's private affairs without authority of law in violation of Const. art. I, § 7. [5] Automobiles — Arrest — Traffic Violation — Pretext To Search — Fruit of Unlawful Search or Seizure. Evidence obtained as the result of a pretextual traffic stop must be suppressed as derivative of an unconstitutional seizure. [6] Criminal Law — Review — Issues Not Raised in Trial Court — Assistance of Counsel — Effectiveness. A criminal defendant's claim of ineffective assistance of trial counsel raises an issue of constitutional magnitude that may be considered for the first time by an appellate court. [7] Automobiles — Arrest — Traffic Violation — Pretext To Search — Enforcement of Traffic Code. A police officer's testimony that the driver of a vehicle the officer stopped for a traffic infraction appeared to be trying to avoid driving in front of the officer does not establish that the stop was pretextual if the officer had first observed the driver commit a traffic infraction and was following the vehicle because of the observed infraction and there is no evidence that the officer was following the vehicle because the officer suspected the driver was trying to avoid the officer. Patrol officers whose suspicions have been aroused may still enforce the traffic code so long as enforcement of the traffic code is the actual reason for the stop. [8] Automobiles — Arrest — Traffic Violation — Pretext To Search — Purpose of Stop. A police officer's stop of a motor vehicle is not pretextual if the purpose of the stop is to enforce the traffic code rather than to search for evidence of a crime unrelated to the vehicle's operation. [9] Automobiles — Arrest — Traffic Violation — Pretext To Search — Probable Cause — Effect. In general, a traffic stop is not pretextual if the police officer making the stop has probable cause to believe that a traffic violation has occurred. The validity of the stop does not depend on whether the traffic violation in fact occurred. [10] Automobiles — Arrest — Traffic Violation — Probable Cause — Changing Lanes — Failure To Signal. A police officer who observes a motorist enter a roadway, immediately cross over a double yellow line, and quickly move into a far right lane of traffic has probable cause to believe that the motorist has violated RCW 46.61.140(1), which requires that a driver drive "as nearly as practicable entirely within a single lane" and not change lanes without first determining that it is safe to do so, and RCW 46.61.305(2), which requires a driver to signal a turn at least 100 feet of travel before turning. [11] Criminal Law — Right to Counsel — Effective Assistance of Counsel — Failure To Move To Suppress — Strategic or Tactical Reasons. A criminal defendant claiming ineffective assistance of trial counsel based on counsel's failure to move to suppress evidence on a particular ground has the burden of overcoming the strong presumption that counsel's performance was not deficient. This burden is not satisfied when the record shows that counsel's failure to move to suppress on a particular ground was a legitimate tactic. There is no ineffectiveness if the challenge to admissibility would have failed. Nature of Action: Prosecution for unlawful possession of a controlled substance. The defendant was a passenger in a motor vehicle that was stopped by a police officer after the officer observed the driver commit a traffic infraction. The driver was arrested on the basis of driving while license suspended and on the basis of his active status with the Department of Corrections as a result of a felony conviction for a violent offense. The defendant was directed to step out of the vehicle, following which the vehicle was searched incident to the driver's arrest. Another officer conducted a pat-down search of the defendant for weapons. After the vehicle was searched, the officer who conducted the search observed a plastic bindle on the ground near where the driver had been handcuffed. The defendant denied that the bindle was his and denied using drugs. At the request of one of the police officers present, the defendant agreed to a search of his person. A baggie containing a substance that field tested positive for methamphetamine was found in the defendant's sock. Superior Court: The Superior Court for Spokane County, No. 04-1-01336-5, Gregory D. Sypolt, J., entered a judgment of guilty on December 3, 2004. Court of Appeals: The court affirmed the judgment by an unpublished opinion noted at 131 Wn. App. 1047 (2006). Supreme Court: Holding that trial counsel was not ineffective for failing to move to suppress on grounds of a pretextual stop, the court affirms the decision of the Court of Appeals. Carol A. Elewski-, for petitioner. Steven J. Tucker-, Prosecuting Attorney, and Kevin M. Korsmo- and Andrew J. Metts III-, Deputies, for respondent. En Banc ¶1 MADSEN, J. — Petitioner Caleb George Nichols was convicted of possession of methamphetamine. He maintains that his trial counsel was ineffective for failing to move to suppress evidence obtained following a stop of the vehicle in which he was a passenger. Nichols argues that the stop was pretextual and thus negates his subsequent consent to the search of his person that resulted in discovery of methamphetamine hidden in his sock. The Court of Appeals affirmed his conviction. We affirm the Court of Appeals. FACTS ¶2 The parties stipulated to the facts set out in police reports describing the events occurring just after midnight on November 17, 2003. Deputy Sheriff Shawn Hause was parked in a parking lot at about Francis Avenue and Haven Street in North Spokane when he saw a vehicle going westbound on Francis Avenue from Market Street. He saw the vehicle pull into another parking lot, drive slowly around the lot, and exit the same way it entered, back onto Francis Avenue. He wrote in his report: As it exited the parking lot, it crossed a double yellow line and pulled immediately into the far right lane in the EB [eastbound] lane. It appeared to me that the vehicle (driver) was trying to avoid driving in front of me. I pulled out and the vehicle turned SB [southbound] on Market. I caught up to the vehicle and activated my lights north of Central. Clerk's Papers (CP) at 11. The vehicle did not immediately stop but instead drove slowly another couple of blocks and then turned left onto Joseph and pulled into a car wash parking lot. ¶3 Once the vehicle stopped, Deputy Hause approached the driver's side and asked for the driver's license and paperwork for the vehicle. The driver, who was identified as Jacob Potter, told Hause that he did not have a license and was " 'Driving on a suspended license.' " CP at 12. Hause confirmed with dispatch that Potter's license was suspended and also learned that Potter was "on active DOC [Department of Corrections] status" as a result of a felony conviction for a violent offense. Id. Hause had Potter leave the vehicle, handcuffed him near its left rear tire, and searched him. Hause called for backup, in part because of Potter's violent offense history. ¶4 In the meantime, Hause had identified the passenger in the vehicle as Nichols. Nichols was not wearing a seat belt. After Deputies Brett Hubbell and Daniel Dutton arrived as backup, Hause had Nichols step out of the car. Dutton then took Nichols to the backup patrol car while Hause searched the vehicle incident to Potter's arrest. The search of Potter and that of the vehicle did not yield any drugs, weapons, or contraband. Hubbell conducted a pat down search of Nichols for weapons. ¶5 Hause reported that Nichols appeared intoxicated or under the influence but did not smell of intoxicants. Hause asked Nichols if he had been using drugs and Nichols responded, "No." CP at 12. After searching the vehicle, Hause walked around the rear of it and noticed a plastic bindle that looked like part of a baggie on the ground near where he had handcuffed Potter. The bindle contained a substance that subsequently field-tested positive for methamphetamine. Hause asked Nichols if the bindle was his, and Nichols said, "No way." CP at 13. Dutton said that he had been watching Nichols and Nichols had not thrown or tossed anything. Hause believed that the baggie had come from Potter. ¶6 Hause again asked Nichols if he had been using drugs and Nichols said, "No." CP at 13. Hause asked Nichols if he minded if Hause searched him for drugs. Nichols replied that he had already been searched. Hause explained that search had been a pat down for weapons only. Hause asked Nichols again if he could search him. Nichol said, "Sure—I don't mind." CP at 13. Hause searched Nichols and found a baggie in his sock that contained material that also field tested positive for methamphetamine. Nichols said, "That's not mine," and explained that about the time Hause activated his lights, Potter had given it to him and told him to get rid of it. CP at 14. Hause read both Potter and Nichols their Miranda ¶7 Nichols moved to suppress the evidence of the drugs, arguing that he was merely a passenger who was not suspected of any criminal activity and that he should have been detained only so long as it took to cite him for the seat belt violation. Because he was unlawfully detained, he contended, his consent to search was invalid. The parties agreed to the facts as stated in the police reports for purposes of the suppression motion. The court denied the motion, finding, among other things, that the stop was valid because the vehicle improperly crossed a double yellow line and made an improper lane change. The court also concluded that an infraction resulted because the vehicle failed to drive as nearly as practicable within a single lane. ¶8 A bench trial followed on stipulated facts—those in the police and lab reports—and Nichols was convicted of possession of a controlled substance. He appealed, arguing that his counsel was ineffective because she conceded the legality of the traffic stop. ¶9 The Court of Appeals determined that the infractions found by the trial court are prohibited under RCW 46.61.130(2), RCW 46.61.140(1), and RCW 46.61.305(2) and that Nichols presented plausible arguments that either these statutes were not violated or they did not apply. However, the court concluded that Nichols failed to show that counsel's performance fell below an objective standard of reasonableness. The Court of Appeals did not address Nichols' claim that the stop was a pretext. State v. Nichols, noted at 131 Wn. App. 1047, 2006 Wash. App. LEXIS 244. ANALYSIS ¶12 To determine whether a stop is pretextual, the totality of the circumstances must be considered, including the subjective intent of the officer and the objective reasonableness of the officer's behavior. Id. at 358-59. If the court finds the stop is pretextual, all subsequently obtained evidence flowing from the stop must be suppressed as derivative of the unconstitutional seizure. Id. at 359 (citing State v. Kennedy, 107 Wn.2d 1, 4, 726 P.2d 445 (1986)). ¶14 Turning to the first prong of the Strickland test, Nichols must show that counsel's representation was deficient. He says that State v. Meckelson, 133 Wn. App. 431, 135 P.3d 991 (2006), is analogous and compels a determination that the stop here was pretextual. In Meckelson, an officer in his car pulled alongside another car that was traveling between 25 and 30 miles an hour and being driven normally. The officer testified that it was his job to be observant and so he watched other drivers and their reactions. When his car pulled alongside the other car he "thought the driver looked alarmed, with a 'deer-in-the-headlight' look" and wondered if the driver was nervous because the car was stolen. Id. at 434. He dropped back "to check the registration to see if the driver had a suspended license." Id. As he did so, the driver turned onto another road. Id. Because the officer did not see a turn signal, he pulled the car over for failing to properly signal. Id. As he did so, he saw the passenger, Meckelson, reaching toward the floor. Id. As events unfolded, he removed Meckelson from the car, discovered drugs, and arrested Meckelson for possession of methamphetamine. Id. ¶15 Although Meckelson's trial counsel did move to suppress on the basis of a pretextual stop, he evidently misunderstood what was required to establish a pretextual stop and failed to challenge the grounds that the officer gave to justify the traffic stop. The Court of Appeals found that counsel was ineffective because he "walked away" from the true inquiry—whether the officer stopped the vehicle for the failure to signal or was the purpose, as the officer candidly suggested, to look for evidence of another crime. Instead, counsel explained that he recognized the officer and because of his knowledge of the officer did not challenge the representations that a traffic infraction occurred justifying the stop. Id. at 437. Counsel said he was not asking the court to enter a finding that the officer lied. Id. The Court of Appeals said that counsel's job was to challenge the officer's subjective reason for the stop. Id. at 438. ¶17 It is true that the officers in both cases noted that the drivers appeared to respond to them in a negative way, suggesting they wanted to avoid the officers. But this case is not like Meckelson. In Meckelson, the officer admitted that he was dropping back to start investigating the driver of the vehicle in that case because his suspicions were aroused. Here, Deputy Hause never said he began investigating the vehicle or its driver, or even that he thought of doing so, prior to seeing what he believed were several traffic infractions. There is no evidence in the record that Hause followed the vehicle because he suspected the driver was trying to avoid him. Although he noted his observation that it "appeared to [him] that the vehicle (driver) was trying to avoid driving in front of [him]," CP at 11, he did not say that this is why he pursued the vehicle. Rather, he reported that nearly concurrently with this observation the vehicle crossed the double yellow line and right away moved into the far right lane. Hause immediately pursued the vehicle and activated his lights as soon as he caught up with it. Id. Even though, as Hause reported, it appeared that the driver tried to delay the stop, it still occurred just a few blocks from when Hause first noticed the vehicle. ¶18 "Under Ladson, even patrol officers whose suspicions have been aroused may still enforce the traffic code, so long as enforcement of the traffic code is the actual reason for the stop." State v. Minh Hoang, 101 Wn. App. 732, 742, 6 P.3d 602 (2000). ¶19 This case is also unlike other cases where pretext has been found. For example, in Ladson officers on gang patrol admitted they followed a vehicle for several blocks looking for a legal justification to stop it so they could investigate suspicions that the occupants were involved in narcotics trafficking. They eventually pulled the vehicle over because it had expired license tabs. Ladson, 138 Wn.2d at 346. ¶20 In State v. DeSantiago, 97 Wn. App. 446, 452, 983 P.2d 1173 (1999), the Court of Appeals held that the stop was invalid as a pretextual stop under Ladson. The trial court's findings show why DeSantiago is distinguishable. The officer saw the defendant exit an apartment complex that was a narcotics hot spot and followed the defendant as he left in his automobile because the officer wanted to identify the license plate and because he was looking for a reason to stop the vehicle. Id. at 452. After following for several blocks, the officer saw the defendant make an improper left hand turn and stopped him. The Court of Appeals held the stop was a pretextual stop. ¶21 In State v. Myers, 117 Wn. App. 93, 69 P.3d 367 (2003), the defendant drove past the officer, who was in the area on business other than routine patrol and who recognized the defendant as having had a suspended license about one year earlier. The officer began following the car because he suspected that the defendant was driving with a suspended license; he ran a license check as he followed and waited for the results, but stopped the defendant's vehicle for a traffic infraction before the results were back. Id. at 95, 97. The court concluded the stop was pretextual because the officer's real purpose was to investigate the defendant for driving with a suspended license. Id. at 97. ¶23 Nichols argues, however, that other evidence supports pretext. First, he relies on a "Summary of Facts" prepared several months after the stop by a detective not involved in the stop, who said that "DEPUTY HAUSE will testify that on 11/17/03 at approximately 0026 hours he made a traffic stop at Market and Joseph, Spokane County WA after observing this vehicle avoid his marked patrol car in a suspicious manner and also for crossing a double yellow line and not turning into the immediate travel lane while making a turn." CP at 61. The record does not show that Hause himself phrased his observations in this way nor does it show how this summary was used or whether Hause himself ever saw it. ¶25 With regard to the vehicle crossing double yellow lines, Nichols cites RCW 46.61.130, which relates to no passing zones. He relies on an exception in this statute that applies when a vehicle is turning left from an alley, private road, or driveway. RCW 46.61.130(3). He maintains that leaving a parking lot is equivalent to these actions. ¶26 The State, however, says that RCW 46.61.130 is the wrong statute. Instead, the State relies on RCW 46.61.150, which prohibits, among other things, driving across solid double yellow lines that contain cross-hatching where a highway (defined as public ways maintained for vehicular traffic, RCW 46.04.197) has been divided into two or more roadways by such lines. Nichols counters that the record does not show whether the double yellow lines contained such cross-hatching and that, regardless, a vehicle may cross at a crossover or intersection established by public authority. RCW 46.61.150. He says it is likely there was such a crossover or intersection because he was leaving a commercial establishment on a public road. He says that without additional facts, the State cannot establish a violation of this statute. ¶27 But when arguing ineffective assistance of counsel, the burden is on the defendant to show deficient performance. Because the purpose of Nichols' contentions that the statutes were not violated is to show that objectively reasonable conduct by counsel would have been to move to suppress on this basis, it is his burden to show the stop was not justified by the commission of traffic infractions. He is simply unable to do so on this record. ¶28 Nichols also complains that the only infraction that Hause directly stated occurred is in the "Statement of Arresting Officer and Preliminary Finding of Probable Cause," where Hause stated that he observed the vehicle make an improper turn. CP at 17. The other infractions must all be inferred from the facts stated in the police reports. But Nichols cites no authority for the proposition that an officer must affirmatively state in a report any or all infractions he or she observed or note the particular statutes or ordinances violated. And while the issuance of a citation would specify at least one of the infractions for which the officer believed he had probable cause to stop the vehicle, the issuance of citations is not required. Here, no citations were issued; instead the driver and Nichols were arrested for drug offenses. ¶30 Moreover, a claim of ineffectiveness due to failure to move to suppress on a particular basis can be undermined to some degree if counsel moved to suppress on another ground. In McFarland, neither defendant had shown deficient representation for failing to move to suppress evidence seized following warrantless arrests, and, as to McFarland, we noted that "[t]o the contrary, McFarland's trial counsel unsuccessfully moved to suppress the physical evidence on the ground that there was not probable cause to suspect McFarland committed the crime, as well as on other grounds." McFarland, 127 Wn.2d at 337 n.3. We concluded that this "undermin[ed the] claim of deficient representation" because it "suggest[ed that] counsel made a reasoned decision not to move for suppression based on the warrantless arrest." Id. ¶31 Similarly, here Nichols' trial counsel moved for suppression on the ground that as a passenger Nichols could be detained only so long as it took to cite him for a seat belt infraction and his continued detention was unconstitutional and tainted his consent. In addition, Nichols' trial brief in support of the motion cited Ladson for the proposition that the state constitution provides greater protection to the state's citizens than the Fourth Amendment to the United States Constitution, suggesting familiarity with the case. Like in McFarland, counsel's motion to suppress on other grounds suggests that counsel made a reasoned decision not to move to suppress on the basis of pretext, particularly in light of the paucity of evidence supporting any subjective intent to stop the vehicle for speculative investigative purposes. ¶32 We conclude that on this record, Nichols has failed to show that counsel should have moved for suppression on the basis of pretext and is unable to overcome the strong presumption that counsel's performance was not deficient. See McFarland, 127 Wn.2d at 337; see also State v. Turner, 143 Wn.2d 715, 730, 23 P.3d 499 (2001) (defendant failed to show that counsel's performance was deficient for failing to present expert testimony on a diminished capacity defense where it could not be determined from the record that any expert would have testified the defendant lacked the specific intent to commit the crime with which he was charged). CONCLUSION ¶33 Mr. Nichols has failed to establish on this record that counsel's representation was deficient for failing to move to suppress evidence on the ground of a pretextual traffic stop. The record shows nothing suggesting pretext other than the officer's observation that it looked like the driver of the vehicle was trying to avoid driving in front of him. Counsel in fact moved to suppress on other, more likely grounds. Accordingly, we uphold the Court of Appeals' affirmance of Nichols' conviction. ALEXANDER, C.J., and C. JOHNSON, SANDERS, BRIDGE, CHAMBERS, OWENS, FAIRHURST, and J.M. JOHNSON, JJ., concur.