                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                         October 10, 2017




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 ESTATE OF JAMES CRAMPTON ROGERS,                                    No. 49123-1-II
 by and through PAUL CULLEN, Personal
 Representative of the ESTATE,

                                Appellant,

        v.

 THE STATE OF WASHINGTON and                                  UNPUBLISHED OPINION
 RUSSELL SANDERS, in his capacity as a
 Washington State Trooper, and as an individual,

                                Respondent.


       LEE, J. —James Crampton Rogers was pulled over by a Washington State Patrol trooper

and arrested. After Rogers was arraigned, he agreed to a pretrial diversion agreement and order.

Rogers agreed to waive his rights to challenge the evidence against him and that probable cause

existed to believe he committed the crimes of driving under the influence, possession of marijuana,

and possession of drug paraphernalia. Rogers later sued the State, the trooper, and the towing

company that impounded his vehicle. Rogers’s civil suit alleged 42 U.S.C. § 1983 liability,

trespass, and negligence, for his traffic stop and arrest, and conversion for impounding his vehicle.

Rogers later died, and his estate (the Estate) continued the prosecution of his claims. The superior

court granted summary judgment against the Estate and dismissed the suit.
No. 49123-1-II


        On appeal, the Estate argues the superior court erred in failing to consider Rogers’s

testimony during a Department of Licensing administrative hearing challenging the Department’s

revocation of Rogers’s driver’s license, and erred in dismissing the § 1983, trespass, negligence,

and conversion claims against the State and the trooper on summary judgment and in denying the

Estate’s motion for reconsideration. We hold that the superior court did not err in declining to

consider Rogers’s testimony from the Department of Licensing hearing, did not err in granting

summary judgment, and did not err in denying reconsideration. Therefore, we affirm.

                                                FACTS

A.      INCIDENT AND CRIMINAL PROCEEDINGS

        On June 24, 2008, Washington State Patrol Trooper Russell Sanders received information

from the Washington State Patrol’s dispatcher that “a small blue pick up [sic] with a top[p]er,”

along with the vehicle license plate number, was heading west from the Hood Canal Bridge and

was having problems maintaining lane travel. Clerk’s Papers (CP) at 38. Trooper Sanders found

the truck and observed it “drive on to [sic] the centerline” twice, and “drift[] to the right and quickly

jerk[] the vehicle to the left.” CP at 38. Trooper Sanders initiated a traffic stop of the pickup.

Rogers was driving the pickup.

        Upon making contact with Rogers, Trooper Sanders observed “[a]n odor of alcohol

emitting from [Rogers’s] vehicle, as well as the odor of alcohol and marijuana emitting from

Rogers’[s] person.” CP at 95. Rogers also had “[b]loodshot, droopy, dilated and watery eyes; he

had slurred speech and unnecessarily repeated himself.” CP at 95. Rogers “attempted to hide

marijuana and drug paraphernalia from [Trooper Sanders].” CP at 95. After Rogers admitted that




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No. 49123-1-II


he had a drink earlier in the night, Trooper Sanders conducted field sobriety tests, which Rogers

failed.

          Trooper Sanders became a commissioned Washington State Patrol Trooper in August

2007, and has received Standard Field Sobriety Tests training. Based on his interactions with

Rogers, he determined that Rogers’s conduct “was consistent with someone under the influence of

intoxicants.” CP at 95. Trooper Sanders placed Rogers under arrest for suspicion of driving under

the influence, and possession of marijuana and paraphernalia. Rogers was transported to jail, while

his vehicle was impounded. CP at 95.

          Michael Armstrong from the towing company impounded Rogers’s truck. In securing

Rogers’s truck to tow, “a duffel bag fell out of the rear of the truck” and a “small can fell out of a

side pocket of the duffel bag.” CP at 52. Inside the can was “a pipe and what appeared to be

marijuana.” CP at 52. Armstrong could also smell marijuana at the rear of the truck. CP at 57.

          Rogers was charged with driving under the influence, possession of marijuana and drug

paraphernalia, and driving with an open container of alcohol. Subsequently, Rogers entered into

a pretrial diversion program pursuant to a pretrial diversion agreement and order.

          Under the pretrial diversion agreement and order, Rogers waived his right to challenge the

admissibility of his statements, as well as his right to challenge physical, oral, or identification

evidence against him. The pretrial diversion agreement and order “ORDERED that probable cause

exists to believe that the Defendant committed the offense(s) charged herein,” and that Rogers

entered into the Pretrial Diversion Agreement and Order “freely, voluntarily and knowingly.” CP

at 93. The offenses that Rogers was charged with in the pretrial diversion agreement and order

were (1) driving under the influence, (2) possession of marijuana, and (3) possession of drug



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No. 49123-1-II


paraphernalia. The pretrial diversion agreement and order was filed on January 21, 2009, and has

not been reversed or otherwise invalidated. Rogers completed his diversion conditions and the

charges were dismissed.

B.       ADMINISTRATIVE HEARING

         On October 30, 2008, Rogers challenged the Department of Licensing’s (DOL) revocation

of his driving privileges in an administrative hearing. The hearing was conducted telephonically,

with a DOL hearing officer, Rogers, and Rogers’s attorney participating. The DOL hearing officer

filed an order on December 8, 2008, dismissing the proposed revocation, and finding that “Rogers

expressed confusion regarding the blood test after submitting to a BAC test” and “[t]hat confusion

was not clarified.” CP at 180.

C.       CIVIL SUIT

         In April 2011, more than two years after entering into the pretrial diversion and agreement

order, Rogers filed a civil suit against Trooper Sanders, individually and in his capacity as a

Washington State Trooper, the State of Washington, and the towing company. The complaint

alleged (1) a Fourth Amendment violation as a result of the traffic stop, (2) a Fourth Amendment

violation as a result of the arrest, (3) 42 U.S.C. § 1983 liability as a result of the unlawful stop and

arrest, (4) trespass and conversion, (5) negligence, and (6) malicious prosecution.

         Rogers died on March 13, 2012, before the suit was resolved. His estate pursued the claims.

The towing company was dismissed from the suit on summary judgment in 2014.1




1
    Rogers has not appealed the dismissal of the towing company.



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No. 49123-1-II


       The State and Trooper Sanders (collectively the State) moved for summary judgment in

February 2016. In its response, the Estate cited portions of what it claimed was part of the

transcript of the DOL administrative hearing. The Estate also voluntarily dismissed its claims for

municipal liability and malicious prosecution. The superior court granted the State’s motion for

summary judgment, dismissing all claims with prejudice.

       The Estate moved for reconsideration. In its motion to reconsider, the Estate alleged that

the superior court refused to consider the alleged partial transcript of the DOL administrative

hearing because it was not certified by a court reporter and the State was not a party to the

proceeding.2 Attached to the motion to reconsider was a transcript from the hearing, transcribed

by a certified court reporter. The superior court denied the motion for reconsideration.

       The Estate appeals the summary judgment order and the order denying reconsideration.

                                           ANALYSIS

       The Estate assigns error to the superior court’s exclusion of the transcript from the DOL

administrative hearing, the superior court’s order for summary judgment in favor of the State and

Trooper Sanders, and the superior court’s denial of the Estate’s motion for reconsideration of the

summary judgment order. We hold that the superior court did not err in not considering the

transcript from the DOL hearing, and did not err in granting summary judgment or in denying the

motion for reconsideration.




2
  The record before us does not include any rulings made by the superior court regarding the
admissibility of the alleged transcript.


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No. 49123-1-II


A.     STANDARD OF REVIEW

       When reviewing a denial of summary judgment, we engage in the same inquiry as the trial

court. Robb v. City of Seattle, 176 Wn.2d 427, 432, 295 P.3d 212 (2013). We conduct a de novo

review of the evidence and all reasonable inferences from the evidence in the light most favorable

to the nonmoving party. Id. at 432–33. We also review issues of law de novo. Id. at 433.

       Summary judgment is appropriate where there are no genuine issues of material fact and

the moving party is entitled to judgment as a matter of law. CR 56(c); Keck v. Collins, 184 Wn.2d

358, 370, 357 P.3d 1080 (2015). “An issue of material fact is genuine if the evidence is sufficient

for a reasonable jury to return a verdict for the nonmoving party.” Id. “If reasonable minds can

reach only one conclusion on an issue of fact, that issue may be determined on summary

judgment.” Sutton v. Tacoma Sch. Dist. No. 10, 180 Wn. App. 859, 865, 324 P.3d 763 (2014).

B.     ROGERS’S TESTIMONY BEFORE THE DOL WAS NOT ADMISSIBLE

       The Estate argues that the transcript of Rogers’s testimony at the DOL administrative

hearing was admissible in the summary judgment proceeding under ER 804(b)(1). We disagree.

       “We review the admissibility of evidence in summary judgment proceedings de novo.”

Parks v. Fink, 173 Wn. App. 366, 375, 293 P.3d 1275, review denied, 177 Wn.2d 1025 (2013).

ER 804 provides exceptions to the rule against hearsay3 when the declarant is unavailable. One of

those exceptions is for “Former Testimony” by the declarant. ER 804(b)(1). The rule provides:




3
 “‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.” ER 801(c). Hearsay is not
admissible unless specifically provided for by the rules of evidence, other court rules, or by statute.
ER 802.



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No. 49123-1-II


                (b) Hearsay Exceptions. The following are not excluded by the hearsay rule
        if the declarant is unavailable as a witness:
                (1) Former Testimony. Testimony given as a witness at another hearing of
        the same or a different proceeding, or in a deposition taken in compliance with law
        in the course of the same or another proceeding, if the party against whom the
        testimony is now offered, or, in a civil action or proceeding, a predecessor in
        interest, had an opportunity and similar motive to develop the testimony by direct,
        cross, or redirect examination.

ER 804(b)(1).

        Here, the testimony offered does not satisfy the exception to hearsay under ER 804(b)(1)

because Rogers was not subject to cross-examination by a party with similar motives to develop

his testimony. At issue in the DOL hearing was whether Rogers’s driving privileges should be

reinstated. Rogers’s contention at the DOL hearing was that he was confused about the blood test.

Therefore, a party opposing Rogers in the DOL hearing would have needed to cross-examine

Rogers on his assertions that he was confused by the instructions regarding his blood test, which

occurred after his arrest.

        In contrast, here, the issue is whether the State had reasonable suspicion to stop, and

probable cause to arrest, Rogers. Thus, a party opposing Rogers in the present suit would be

concerned with cross-examining Rogers on facts leading up to the arrest, not what occurred after

the arrest. Therefore, the superior court properly excluded the testimony from the DOL hearing

because the testimony offered does not satisfy the exception to hearsay under ER 804(b)(1).

        Even if the testimony was admissible under a different rule or statute, nothing in the

testimony created an issue of material fact that would allow this case to survive summary

judgment. As explained, the testimony from the DOL hearing developed facts that occurred after

Rogers’s arrest. The only facts relevant to the present summary judgment proceeding are those

that explain the circumstances leading up to the stop and the arrest. Thus, even if Rogers’s


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No. 49123-1-II


testimony at the DOL hearing was otherwise admissible, nothing within the testimony created an

issue of material fact that would allow this case to survive summary judgment.

C.     42 U.S.C. § 1983 CLAIMS

       The Estate argues that the superior court erred in dismissing the Estate’s 42 U.S.C. § 1983

claims, which were premised on Trooper Sanders’s traffic stop and arrest of Rogers, and which

the Estate alleges violated Rogers’s Fourth Amendment rights. We hold that the superior court

properly dismissed the Estate’s § 1983 claims because the stop and the arrest were proper.

       1.      Legal Principles

               a. 42 U.S.C. § 1983

       42 U.S.C. § 1983 provides a cause of action to citizens who have been deprived of their

rights under the constitution and laws by someone acting under the color of state law. It states:

               Every person who, under color of any statute, ordinance, regulation,
       custom, or usage, of any State or Territory or the District of Columbia, subjects, or
       causes to be subjected, any citizen of the United States or other person within the
       jurisdiction thereof to the deprivation of any rights, privileges, or immunities
       secured by the Constitution and laws, shall be liable to the party injured in an action
       at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983. Washington courts have concurrent jurisdiction with the federal courts to hear

these claims. Sintra, Inc. v. City of Seattle, 119 Wn.2d 1, 11, 829 P.2d 765, cert. denied, sub nom.,

Robinson v. City of Seattle, 506 U.S. 1028 (1992); Haywood v. Drown, 556 U.S. 729, 734-35, 129

S. Ct. 2108, 173 L. Ed. 2d 920 (2009).

       “The constitutionality of a warrantless stop is a question of law we review de novo.” State

v. Gatewood, 163 Wn.2d 534, 539, 182 P.3d 426 (2008).              A warrantless traffic stop is a




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No. 49123-1-II


constitutional investigative stop if it is based upon at least a reasonable articulable suspicion of

either criminal activity or a traffic infraction. State v. Chacon Arreola, 176 Wn.2d 284, 292–93,

290 P.3d 983 (2012). A warrantless arrest is constitutional if it is based on probable cause. State

v. Gaddy, 152 Wn.2d 64, 70, 93 P.3d 872 (2004). “Probable cause exists when the arresting officer

is aware of facts or circumstances, based on reasonably trustworthy information, sufficient to cause

a reasonable officer to believe a crime has been committed.” Id. (emphasis omitted).

       Here, the Estate’s § 1983 challenge fails on the merits as a matter of law. First, the traffic

stop was based on a reasonable articulable suspicion that Rogers had committed a traffic infraction.

Specifically, others had reported Rogers “having problems [maintaining] lane travel,” and Trooper

Sanders’s corroborating observations of Rogers having problems maintaining a direct line of

travel, driving on the centerline twice, and drifting and jerking from right to left. CP at 38.

       Second, the arrest was based on probable cause that Rogers had committed a crime.

Specifically, Trooper Sanders observed: erratic driving before the stop; “a mild odor of alcohol

emitting from [Rogers’s] vehicle”; “the odor of alcohol and marijuana emitting from Rogers’[s]

person”; Rogers had “[b]lood shot, droopy, dilated and watery eyes”; Rogers “had slurred speech

and unnecessarily repeated him self [sic]”; Rogers “attempted to hide marijuana and drug

paraphernalia from [Trooper Sanders]”; Rogers “failed the field sobriety tests”; and Rogers stated

that he had a drink earlier in that night. CP at 39, 95.




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No. 49123-1-II


        On the facts of this case, Trooper Sanders’s warrantless stop and arrest of Rogers were

constitutionally justified as a matter of law. Therefore, the Estate’s § 1983 challenge to the

constitutionality of the stop and arrest fails on the merits.

D.      TRESPASS, NEGLIGENCE, AND CONVERSION CLAIMS

        The Estate argues that, because the traffic stop and arrest were “invalid,” the State is liable

for trespass and negligence claims under the doctrine of respondeat superior for Trooper Sanders’s

actions. Br. of Appellant at 21. Because the traffic stop, the arrest, and the impoundment of

Rogers’s truck were lawful, we disagree.

        First, as explained above, Trooper Sanders’s actions in stopping and subsequently arresting

Rogers were constitutional because they were supported by a reasonable articulable suspicion and

probable cause, respectively. See, Section C, supra. Thus, we hold that the State is not liable for

trespass or negligence under a theory of respondeat superior for the traffic stop and arrest.

        Second, impoundment of Rogers’s truck after his arrest was lawful. RCW 46.55.113(2)(d)

provides that “a police officer may take custody of a vehicle, at his or her discretion, and provide

for its prompt removal to a place of safety under any of the following circumstances: . . . Whenever

the driver of a vehicle is arrested and taken into custody by a police officer.” Here, Rogers was

driving his truck before he was arrested and taken into custody by a police officer, Trooper

Sanders. Trooper Sanders was, therefore, authorized under RCW 46.55.113(2)(d) to take custody

of Rogers’s truck. Thus, the State is not liable for conversion because Trooper Sanders’s

impoundment was lawful.




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No. 49123-1-II


       We affirm.

       A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.



                                                                    Lee, J.
 We concur:



                    Johanson, J.




                   Maxa, A.C.J.




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