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Frank Cikutovich:
Cases
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[U] State v. Lewis, No. 20302-6-III (Wash.App.Div.3 05/23/2002)
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| [1] |
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON Division
Three Panel Six |
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No. 20302-6-III |
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2002.WA.7F7F7F9 |
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May 23, 2002 |
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STATE OF WASHINGTON, RESPONDENT,
v.
TRAVIS ELDON LEWIS, APPELLANT. |
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SOURCE OF APPEAL Appeal from Superior Court of Spokane County
Docket No: 001011262 Judgment or order under review Date filed:
06/27/2001 Judge signing: Hon. Salvatore F. Cozza |
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Counsel OF Record |
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Counsel for Appellant(s) Frank L.
Cikutovich Stiley & Cikutovich
1408 W Broadway Spokane, WA 99201 |
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Counsel for Respondent(s) Kevin M. Korsmo Spokane County Prosecutor's
Office W. 1100 Mallon Spokane, WA 99260 |
| [10] |
Andrew J. Metts Iii Deputy Prosecuting Attorney 1100 W Mallon
Ave Spokane, WA 99260-0270 |
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The opinion of the court was delivered by: Schultheis, J. |
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UNPUBLISHED OPINION |
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Concurring: Dennis J. Sweeney, Frank L. Kurtz. |
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Travis Lewis appeals his conviction for possession of methamphetamine.
He contends the trial court erred when it denied his suppression
motion claiming: (1) the uncorroborated tip of a citizen informant
did not justify his investigatory detention by a sheriff's deputy;
(2) the detaining officer lacked a reasonable and articulable suspicion
that Mr. Lewis was engaged in, or about to engage in, criminal conduct;
and (3) his custodial arrest exceeded the scope and intensity afforded
an investigatory detention. Because the suppression motion was properly
denied, we affirm. |
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Facts |
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Deputy Ron Mulvey is a 22-year veteran of the Spokane County
sheriff's department who currently works in the patrol division.
On March 7, 1999, he responded to a call of a suspicious vehicle
in a rural area of Spokane County. The complainant, Lisa Clausen,
identified herself and gave her address to the operator. She said
there was an unknown vehicle, a van, parked in her driveway. She
reported that two people exited the van and walked into the woods
next to her property. When she looked inside the van she observed
televisions and other electrical equipment piled up in the back.
Ms. Clausen described the van and also provided the license number. |
| [17] |
As Deputy Mulvey arrived at the scene in his marked patrol vehicle,
the van was leaving the area. He followed it and confirmed the license
number. Soon after, the van turned into a private driveway leading
to a private residence. The deputy activated his emergency lights,
called for backup, and walked to the van with his weapon unholstered
but down by his side. He asked the driver to exit the van and accompany
him back to his patrol vehicle. The passenger stayed in the van.
Deputy Mulvey performed a cursory pat down search for weapons and
removed a knife from the man's pocket. After securing the knife
the deputy placed the man in handcuffs. This was done for officer
safety purposes because, based on the information he had received
from dispatch, Deputy Mulvey believed the men in the van might have
been involved in a burglary. Once the backup deputy arrived the
passenger was placed in custody. |
| [18] |
Once the two men were secured Deputy Mulvey contacted the owner
of the residence in whose driveway the van had parked. The homeowner
was unable to identify either of the men or the van. Based on that
information Deputy Mulvey advised the driver of his constitutional
rights. The man agreed to waive those rights and talk to the deputy. |
| [19] |
Although he did not carry identification, the driver initially
told the officer his name was Trevor Lewis, but then said his name
was Tracy Lewis and that he was born on May 22, 1972. Deputy Mulvey
ran a routine license and warrants check on the name Tracy Lewis.
Dispatch advised the deputy that Tracy Lewis had a suspended license.
The deputy was also informed that Tracy Lewis had a twin named Travis
Lewis. Dispatch told the deputy that Travis Lewis also had a suspended
license and a felony warrant out of the state of Idaho. When Deputy
Mulvey relayed this information, the driver maintained his name
was Tracy Lewis. |
| [20] |
Because of the identity confusion Deputy Mulvey received permission
from his superior officer to bring the driver to the jail and to
impound the vehicle. After being transported to the station, the
driver was eventually identified as Travis Lewis. He was then arrested
on the Idaho warrant. A search incident to arrest turned up a plastic
baggie in his shirt pocket that was later identified as methamphetamine.
Mr. Lewis maintained the baggie was not his and claimed it had been
planted on him. |
| [21] |
Although the information is not contained in the record Mr.
Lewis was apparently charged with possession of a controlled substance.
He filed a suppression motion regarding the drug evidence, which
was denied after a hearing. A bench trial was conducted on stipulated
facts after which he was found guilty and sentenced within the standard
range. A timely appeal challenging the suppression hearing was filed. |
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Analysis |
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The sole issue on appeal is whether the trial court abused its
discretion when it denied Mr. Lewis's motion to suppress. This court
reviews the denial of a suppression motion by determining whether
substantial evidence exists to support the trial court's findings
of fact, and whether those findings support the conclusions of law.
State v. Teran, 71 Wn. App. 668, 671, 862 P.2d 137 (1993). |
| [24] |
The findings and conclusions included in the record were drafted,
in part, from the stipulated facts that were submitted to the court
for the bench trial. However, they address only the drug charge,
not the suppression motion. This error is not fatal to Mr. Lewis's
claim, though, because the hearing on the CrR 3.6 motion, including
the court's oral decision, was transcribed and is included in the
record. In the absence of a specific finding, this court may look
to the trial court's oral opinion to determine its resolution of
an issue. Backlund v. Univ. of Wash., 137 Wn.2d 651, 656 n.1, 975
P.2d 950 (1999). |
| [25] |
Mr. Lewis first contends the uncorroborated tip from the citizen
complainant did not justify the investigatory stop of Mr. Lewis's
vehicle. In general, a seizure for the purpose of an investigatory
stop is reasonable if an officer can point to specific and articulable
facts that give rise to a reasonable suspicion that the detainee
is or is about to be involved in criminal activity. State v. Kennedy,
107 Wn.2d 1, 5-6, 726 P.2d 445 (1986); see also Terry v. Ohio, 392
U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). When a stop is
based on information supplied by an informant, there must be sufficient
indicia of reliability in that information to justify a reasonable
suspicion in an officer's mind. Kennedy, 107 Wn.2d at 7. The degree
of reliability of a citizen's reported information is not as stringent
as is that required of a professional informant. Id. at 8. Even
so, Ms. Clausen's tip required circumstances suggesting the source
of the information is reliable or some corroborative police observation
suggesting the presence of either criminal activity or that the
informant's information was obtained in a reliable manner. State
v. Sieler, 95 Wn.2d 43, 47-48, 621 P.2d 1272 (1980). |
| [26] |
The above criteria were met under the facts of this case. Deputy
Mulvey did not speak to Ms. Clausen in order to judge her veracity
because the suspicious van was leaving the area just as he arrived.
However, he was able to corroborate several of Ms. Clausen's reported
facts immediately upon his arrival at the scene. This suggests that
the reported information regarding the van and its occupants was
obtained in a reliable manner. Mr. Lewis's contention to the contrary
fails. |
| [27] |
Mr. Lewis next claims that the arresting officer did not have
a reasonable and articulable suspicion of criminal activity in order
to conduct a Terry stop. We disagree. |
| [28] |
Deputy Mulvey, a 22-year veteran of the sheriff's department,
was concerned that a burglary had occurred or was about to occur.
Consequently, he followed the van as it left Ms. Clausen's property.
The deputy's concerns were further heightened when the van turned
into another driveway marked 'private.' Report of Proceedings at
8. Consequently, the record supports the court's conclusion that
Deputy Mulvey had reason to suspect that a crime had been or was
about to be committed. The suppression motion was properly denied
based on the allegation of an improper stop and frisk procedure. |
| [29] |
Finally, Mr. Lewis alleges the trial court erred by denying
the suppression motion based on a custodial arrest that exceeded
the scope and intensity afforded by an investigatory stop. He is
incorrect. |
| [30] |
Under narrow circumstances it is permissible for an officer
to ask a driver to step away from a stopped vehicle without the
stop turning into a custodial arrest. State v. Watkins, 76 Wn. App.
726, 729, 887 P.2d 492 (1995). The reasonableness of the action
is analyzed using a two-step process: '(1) whether the initial interference
with the suspect's freedom of movement was justified at its inception
and (2) whether it was reasonably related in scope to the circumstances
which justified the interference in the first place.' Id. at 730. |
| [31] |
Here, the deputy testified that he asked the driver to step
away from the parked van for officer safety purposes since he was
by himself in a remote area. Based on the information received from
dispatch and from his professional experience, the deputy was concerned
that he may have encountered a burglary situation. Upon finding
a knife in the driver's pocket, the deputy handcuffed and placed
the unidentified man in the back of his patrol car. Mr. Lewis was
not under arrest at that time. The court found these actions were
reasonable under the circumstances. Substantial evidence in the
record supports this finding. |
| [32] |
Once a backup unit arrived at the scene, Deputy Mulvey contacted
the owner of the home in whose driveway Mr. Lewis had parked. The
homeowner told the deputy that he did not know the men in the van.
At this point Mr. Lewis was read his rights, which he voluntarily
waived. Because during questioning Mr. Lewis identified himself
by his real name, a false name, and his twin brother's name, the
deputy obtained permission from his superior officer to transport
Mr. Lewis to the jail so that a positive identification could be
made. Once identified as a person with an outstanding warrant, Mr.
Lewis was formally arrested and searched at the county jail where
the illegal drugs were found in his shirt pocket. |
| [33] |
The events leading to the stop and frisk as well as the custodial
interrogation proceeded in a proper manner. We find no evidence
of a constitutional violation of Mr. Lewis's rights. Accordingly,
the trial court decision is affirmed. |
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A majority of the panel has determined that this opinion will
not be printed in the Washington Appellate Reports but it will be
filed for public record pursuant to RCW 2.06.040. |
| [35] |
Schultheis, J. |
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WE CONCUR: |
| [37] |
Sweeney, J. |
| [38] |
Kurtz, J. |
