                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                           January 22, 2020



    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           DIVISION II
 STATE OF WASHINGTON,                                                 No. 52117-2-II

                                 Respondent,
                                                                UNPUBLISHED OPINION
          v.

 WILLIAM KELLY PILAND,

                                 Appellant.



         MAXA, C.J. – William Piland appeals his convictions of unlawful possession of

methamphetamine with intent to deliver, unlawful possession of heroin, and second degree

unlawful possession of a firearm. Evidence supporting those convictions was discovered

following a traffic stop that Piland claims was pretextual and therefore was unlawful.

         Piland claims that defense counsel’s failure to argue that the traffic stop was pretextual

deprived him of his right to effective assistance of counsel. We hold that the record is

insufficient for Piland to satisfy his burden of showing that the trial court would have ruled that

the traffic stop was unlawful, and therefore we reject Piland’s ineffective assistance of counsel

claim.

         Piland also argues that the trial court erred in imposing a jury demand fee and a crime lab

fee as legal financial obligations (LFOs) after the court found him indigent. As the State
No. 52117-2-II


concedes, we hold that the jury demand fee must be stricken and that the crime lab fee may be

suspended if Piland files a verified petition on remand.

       Accordingly, we affirm Piland’s convictions, but we remand for the trial court to strike

the jury demand fee and address the crime lab fee.

                                              FACTS

       On November 10, 2016, Vancouver Police Detective Zachary Ripp, who was working

with the Neighborhood Response Team (NRT), contacted patrol officer James Kelly. Ripp

asked Kelly to stop a car Piland was driving because he believed that one of Piland’s passengers

was the subject of a current narcotics investigation. Kelly stopped Piland’s car after noticing an

altered trip permit on the car.

       Kelly gave the following testimony at Piland’s first trial:1

          A. That day when I was working routine patrol, Detective Ripp got ahold of me
       and advised that he was doing some detective work in the area, asked for my
       assistance in stopping a vehicle and contacting the subjects in the vehicle.
          Q. Okay. And did you stop the defendant’s vehicle for an altered trip permit?
          A. I did. That was the first thing I noticed on the vehicle --
          Q. Okay.
          A. -- before I even stopped him.

Report of Proceedings (RP) at 43.

       During the second trial, Kelly explained:

          Q. (By Mr. Podhora) Detective Kelly, could you tell us about how you came
       into contact with the defendant on November 10th, 2016?
          A. Yeah, Detective Ripp got a hold of me, advised me of -- they were looking
       for somebody.
          Q. Okay.
          A. And they were --
          Q. Let me stop you there. Was it during the course of a traffic stop that --
          A. Yes.


1
  Piland’s first trial ended in a mistrial because one of the jurors was unable to continue to serve.
We present the facts from both trials because we need to decide if Piland makes a sufficient
ineffective assistance of counsel claim.


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No. 52117-2-II


           Q. -- you came into contact --
           A. Yes, it was.
           Q. -- with the defendant? Okay.
           .....
           A. Before I activated my lights or anything like that without pulling the car
       over, I noticed that in the rear window was a trip permit with clear plastic tape over
       it. Trip permits are, like, three day trip permits for vehicles that are traveling over
       state lines, or they’re waiting to go to DEQ or something like that. But on the trip
       permit, it was -- obviously somebody had wrote over the plastic with a Sharpie --
           Q. Okay.
           A. -- altering the trip permit.
           Q. Okay. Is that some sort of -- is that, like, an infraction or --
           A. Yeah, it’s --
           Q. -- misdemeanor or something in --
           A. -- a misdemeanor in the state of Washington.
           Q. Okay. So you observed what you believed might be a traffic-related
       infraction?
           A. Yes.
           Q. Okay. And what did you do next?
           A. At that time I activated my overhead lights and stopped the vehicle.

RP at 370-72.

       Kelly removed Piland from the car, patted him down, and confiscated his wallet and cell

phone. During the stop, NRT officers arrived and took custody of Piland. Within an hour or so

of the traffic stop, Ripp obtained a search warrant for Piland’s residence and officers seized

evidence of methamphetamine, heroin, digital scales, and electronics from Piland’s bedroom. In

addition, officers called a K-9 unit to sniff Piland’s car. The next day, Ripp obtained a search

warrant for Piland’s car and seized a pistol and ammunition during its execution.

       The State charged Piland with unlawful possession of methamphetamine with intent to

deliver, unlawful possession of heroin, and second degree unlawful possession of a firearm. A

jury found Piland guilty of all counts. At sentencing, the court stated that discretionary LFOs

would be waived. The court struck three discretionary LFOs from the judgment and sentence,

but neglected to strike the $250 jury demand fee. And the judgment and sentence also imposed a

$100 crime lab fee.



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No. 52117-2-II


       Piland appeals his convictions and the imposition of the challenged LFOs.

                                             ANALYSIS

A.     INEFFECTIVE ASSISTANCE OF COUNSEL

       Piland argues that defense counsel’s failure to file a motion to suppress based on a

pretextual stop constituted ineffective assistance of counsel. We hold that the record is

insufficient for Piland to meet his burden of showing ineffective assistance of counsel.

       1.    Legal Principles

       Ineffective assistance of counsel arises from the Sixth Amendment to the United States

Constitution and article I, section 22 of the Washington Constitution. State v. Estes, 188 Wn.2d

450, 457, 395 P.3d 1045 (2017). To prevail on an ineffective assistance claim, the defendant

must show both that (1) defense counsel’s representation was deficient and (2) the deficient

representation prejudiced the defendant. Id. at 457-58. Representation is deficient if, after

considering all the circumstances, it falls below an objective standard of reasonableness. Id. at

458. Prejudice exists if there is a reasonable probability that, but for counsel’s errors, the result

of the proceeding would have differed. Id.

       In the context of failing to file a motion to suppress, defense counsel’s performance will

only be considered deficient if the defendant can show that the trial court likely would have

granted the motion. State v. D.E.D., 200 Wn. App. 484, 490, 402 P.3d 851 (2017). “[T]here is

no ineffectiveness if a challenge to admissibility of evidence would have failed.” State v.

Nichols, 161 Wn.2d 1, 14-15, 162 P.3d 1122 (2007). Therefore, the question here is whether the

trial court likely would have granted a motion to suppress evidence related to the traffic stop if

defense counsel had filed one.




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No. 52117-2-II


        2.   Validity of Traffic Stop

        Article I, section 7 of the Washington Constitution prohibits warrantless searches unless

one of the exceptions to the warrant requirement applies. State v. Froehlich, 197 Wn. App. 831,

837, 391 P.3d 559 (2017). One exception is a traffic stop based on 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).

        However, a traffic stop purportedly based on a traffic infraction is unconstitutional under

article I, section 7 when the infraction is a pretext for conducting a criminal investigation

unrelated to the driving. Id. at 294; State v. Ladson, 138 Wn.2d 343, 349, 979 P.2d 833 (1999).

“A pretextual traffic stop occurs when a police officer relies on some legal authorization as a

‘mere pretext to dispense with [a] warrant when the true reason for the seizure is not exempt

from the warrant requirement.’ ” Chacon Arreola, 176 Wn.2d at 294 (quoting Ladson, 138

Wn.2d at 358). To determine whether a stop is pretextual, the court considers the totality of the

circumstances, which includes both the officer’s subjective intent and the objective

reasonableness of the officer’s behavior. Ladson, 138 Wn.2d at 358-59.

        A traffic stop based on both legitimate and illegitimate grounds – a “mixed-motive”

traffic stop – does not violate article I, section 7 under certain circumstances. Chacon Arreola,

176 Wn.2d at 297-300. The court in Chacon Arreola held that a traffic stop is not pretextual if

“investigation of either criminal activity or a traffic infraction (or multiple infractions), for which

the officer has a reasonable articulable suspicion, is an actual, conscious, and independent cause

of the traffic stop.” Id. at 297.

        The court explained the rationale supporting this holding:

        A mixed-motive stop does not violate article I, section 7 so long as the police officer
        making the stop exercises discretion appropriately. Thus, if a police officer makes



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No. 52117-2-II


       an independent and conscious determination that a traffic stop to address a
       suspected traffic infraction is reasonably necessary in furtherance of traffic safety
       and the general welfare, the stop is not pretextual. That remains true even if the
       legitimate reason for the stop is secondary and the officer is motivated primarily by
       a hunch or some other reason that is insufficient to justify a stop. In such a case,
       the legitimate ground is an independent cause of the stop, and privacy is justifiably
       disturbed due to the need to enforce traffic regulations, as determined by an
       appropriate exercise of police discretion. Any additional reason or motivation of
       the officer does not affect privacy in such a case, nor does it interfere with the
       underlying exercise of police discretion, because the officer would have stopped
       the vehicle regardless.

Id. at 298-99. The court stated that the presence of an illegitimate reason for the traffic stop is

material to “whether the officer really stopped the vehicle for a legitimate and independent reason

(and thus would have conducted the traffic stop regardless).” Id. at 299.

       In Chacon Arreola, an officer was following Chacon Arreola because of a report that he

possibly was driving under the influence. Id. at 288. The officer did not observe any signs of

intoxication but noticed that the vehicle had an altered exhaust and stopped Chacon Arreola for

violating RCW 46.37.390. Id. at 289. The officer testified at the suppression hearing that the

muffler violation was an actual reason for the stop and that he commonly stops people for

muffler violations if it will not interfere with a more pressing matter. Id.

       The trial court found that the officer was a credible witness and would have stopped

Chacon Arreola for the muffler violation even if he had not received the suspected intoxication

report. Id. As a result, the court ruled that the traffic stop was not pretextual. Id. at 290. The

Supreme Court upheld the trial court’s ruling because “[a] traffic infraction, about which the

officer had a reasonable, articulable suspicion, was an actual, conscious, and independent cause

of the traffic stop.” Id. at 300. The court stated that the fact the officer also was motivated by a

related investigation was irrelevant. Id.




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No. 52117-2-II


        3.   Analysis

        Piland argues that the facts and circumstances in the record demonstrate that the traffic

stop was pretextual. First, Ripp asked Kelly to stop the vehicle because the NRT believed that

the subject of its narcotics investigation was riding in Piland’s car. Second, the NRT officers

quickly came to the scene of the traffic stop, suggesting that the stop was not for a simple traffic

infraction. Third, Kelly removed Piland from the car, frisked him, and took his wallet and

cellphone, suggesting that this was a criminal investigation not a traffic stop. Fourth, the NRT

detectives called a K-9 unit to sniff Piland’s car, something totally unrelated to the traffic stop.

And fifth, within an hour after the stop, Ripp had obtained and executed a search warrant on

Piland’s apartment, suggesting that the main focus of the traffic stop was the criminal

investigation.

        However, the evidence shows that Kelly may have stopped Piland’s car based on both

legitimate and illegitimate grounds. Ripp did ask Kelly to stop the car as part of a criminal

investigation, and there was no indication that Ripp had a reasonable articulable suspicion that

Piland or his passengers were engaged in criminal activity. But when Kelly encountered the car,

the first thing he noticed was the altered trip permit. Kelly stated that he stopped the car because

of the altered trip permit.

        If defense counsel had filed a suppression motion, the trial court would have had to

determine whether this was a mixed-motive traffic stop. If so, the court would have had to

decide, among other issues, if the altered trip permit was an “actual, conscious, and independent

cause of the traffic stop” and whether Kelly made an “independent and conscious determination

that a traffic stop to address a suspected traffic infraction [was] reasonably necessary in




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No. 52117-2-II


furtherance of traffic safety and the general welfare.” Chacon Arreola, 176 Wn.2d at 297, 298-

99.

       Unfortunately, the record is insufficient for us to determine how the trial court would

have resolved these issues. Because there was no suppression hearing, Kelly was not asked

about his motivation for stopping Piland’s car beyond his affirmative answer to the question

“And did you stop the car for an altered trip permit?” RP at 43. There is no evidence that

reveals whether the altered trip permit was an actual, conscious, and independent reason for the

stop or whether Kelly determined that a traffic stop was reasonably necessary to address the

violation. There is no evidence that reveals whether Kelly would have made the traffic stop

based on the altered trip permit regardless of Ripp’s request.

       The absence of a sufficient record precludes Piland from meeting his burden of proving

that the trial court would have granted a suppression motion if defense counsel had filed one.

Therefore, Piland cannot establish that his defense counsel’s performance was deficient. See

D.E.D., 200 Wn. App. at 490. The appropriate means for addressing an issue that requires

evidence not in the record is through a personal restraint petition. State v. Linville, 191 Wn.2d

513, 525, 423 P.3d 842 (2018).

B.     IMPOSITION OF LFOS

       Piland argues that the jury demand fee and a crime lab fee the trial court imposed as

LFOs must be stricken. The State concedes that the trial court should have removed the jury

demand fee from the judgment and sentence after ruling that discretionary LFOs would not be

imposed and that the trial court can suspend the crime lab fee if Piland files a verified petition.

We agree with the State.




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No. 52117-2-II


        At sentencing, the trial court waived discretionary costs. However, the court did not

strike the jury demand fee from the judgment and sentence. Both Piland and the State

characterize this as a scrivener’s error. We remand for the trial court to strike the jury demand

fee.

        RCW 43.43.690 allows the trial court to suspend the crime lab fee if the court finds that

the defendant does not have the ability to pay the fee and if the defendant files a verified petition.

On remand, Piland can submit a verified petition to request suspension of the crime lab fee.

                                          CONCLUSION

        We affirm Piland’s convictions, but we remand for the trial court to strike the jury

demand fee and address the crime lab fee.

        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.



                                                      MAXA, C.J.



 We concur:



 MELNICK, J.




 GLASGOW, J.




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