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      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                            No. 69607-6-


                    Respondent,                 DIVISION ONE


                   v.



KENNETH DAJION KELLY,                           UNPUBLISHED


                    Appellant.                  FILED: April 28, 2014



       Cox, J. — Kenneth Kelly appeals his conviction for unlawful possession of

a firearm, contending the trial court erred by denying his motion to suppress

evidence of the firearm. Because the stop of the vehicle in which he was a

passenger was not pretextual, he was lawfully seized, and the firearm within his

reach was also lawfully seized, we affirm.

       In the early morning of February 26, 2012, Seattle Police Detectives Josh

Rurey and Robert Thomas were patrolling the streets in a patrol car bearing

subdued markings on its side. The detectives, in full uniform, were assigned to

the gang unit.

       As the detectives traveled northbound on 51st Avenue South, a Mercedes

sedan with tinted side windows drew their attention when it conducted a U-turn in
No. 69607-6-1/2



front of them. At approximately 12:42 a.m., Detective Rurey entered the

Mercedes' license plate number into his computer. He learned that the title to

this recently sold vehicle had not been transferred within the requisite 45 day

time limit.1 The detectives decided to turn their patrol car around and stop the

Mercedes for this traffic violation. However, while the detectives were obtaining

the information from their computer, they lost sight of the Mercedes.

       Once the detectives turned around to follow the Mercedes, they saw that

the vehicle had driven a significant distance in a short amount of time. It was

apparent to them that the vehicle had been traveling at a high rate of speed over

the posted speed limit. Although the detectives drove over the speed limit as

they pursued the Mercedes, they were initially unable to close in on the vehicle.

       At approximately 12:45 a.m., the detectives caught up to the Mercedes

when it stopped at a traffic light. The detectives pulled up behind the vehicle at

the light. When the traffic light turned green, Detective Thomas activated the

patrol vehicle's emergency lights. The Mercedes turned left at the intersection

and came to a stop.

       Detective Thomas headed toward the driver's side of the Mercedes to

speak to the driver while Detective Rurey approached the passenger's side. At

this time, the driver voluntarily opened the driver door. But because of the tinted

windows and the dark outdoor surroundings, the detectives could not see into the

interior of the vehicle. As a result, to ensure officer safety, Detective Rurey

opened the rear passenger door and Detective Thomas asked the driver to roll

       1 Former RCW 46.12.101(6); RCW 46.12.650(7).

                                         -2-
No. 69607-6-1/3



down the vehicle's windows. The driver rolled down the window on the driver's

door. From their vantage points, the detectives observed two occupants in the

back seat of the vehicle, a driver, and a front seat passenger. Kelly was one of

the two passengers in the back seat. The detectives did not recognize the

occupants.

        The detectives noticed that Kelly and the other back seat passenger were

not wearing seat belts. Detective Rurey consequently asked them to identify

themselves. Kelly provided his name and date of birth.

        Meanwhile, Detective Rurey stood outside of the Mercedes and scanned

its interior through the open rear passenger door to look for potential threats.

With his flashlight he noticed an object in the front passenger seat's back pocket

that he immediately recognized as the handle of a handgun. It was situated

directly in front of Kelly and within his reach. Detective Rurey drew his weapon,

alerted Detective Thomas, and ordered the occupants to place their hands on the

ceiling. The detectives then called for backup units.

        When additional gang unit officers arrived at the scene, they removed the

occupants from the Mercedes. They first took Kelly out of the vehicle, lay him on

the ground, and handcuffed him. Detective Rurey then reached into the vehicle

and removed the gun.

        Once the detectives learned that Kelly had been previously convicted of

manslaughter, they arrested him for unlawful possession of a firearm. The

detectives did not arrest anyone else. Detective Thomas later cited the driver for

traffic violations.
No. 69607-6-1/4



       The State charged Kelly with one count of unlawful possession of a

firearm in the first degree. Pursuant to CrR 3.6, Kelly moved to suppress all

evidence against him, arguing that Detectives Rurey and Thomas conducted an

unlawful search and seizure. Kelly contended that he was unlawfully seized

because the stop was pretextual, that the detectives lacked sufficient justification

to request his identification, and that the detectives' discovery of the gun was the

result of an unconstitutional search.


       The trial court denied Kelly's motion to suppress and entered written

findings of fact and conclusions of law, incorporating by reference its oral findings

and conclusions. Kelly then waived his right to a jury trial and agreed to a trial on

stipulated evidence. Based on this evidence, the trial court found Kelly guilty of

unlawful possession of a firearm.

       Kelly appeals.

                              SUBSTANTIAL EVIDENCE

       Kelly assigns error to twelve of the trial court's twenty-six findings of fact

entered following the CrR 3.6 hearing. None are persuasive.

       We review the trial court's findings of fact for substantial evidence.2

Substantial evidence is evidence sufficient to persuade a fair-minded, rational

person of the truth of the finding.3

       After a careful review of the record, we hold that the challenged findings

are supported by substantial evidence, including abundant testimony provided by


       2 State v. Martinez. 135 Wn. App. 174, 179, 143 P.3d 855 (2006).
       3 State v. Levy. 156 Wn.2d 709, 733, 132 P.3d 1076 (2006).

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No. 69607-6-1/5



Detectives Rurey and Thomas at the suppression hearing. We reject the

arguments to the contrary.

                               PRETEXTUAL TRAFFIC STOP

        Kelly contends that the trial court erred by concluding that the detectives

conducted a lawful traffic stop and that the stop was not pretextual. We

disagree. The evidence established that the detectives' decision to initiate the

traffic stop was motivated by the transfer of title violation.

        Article I, section 7 of the Washington Constitution prohibits unreasonable

seizures.4 A warrantless seizure is per se unreasonable.5 Evidence obtained in

violation of this constitutional provision must be suppressed, and evidence

obtained as a result of any subsequent search must also be suppressed as fruit

of the poisonous tree.6

        However, a warrantless seizure is valid if it falls within the scope of one of

the narrowly drawn exceptions to the warrant requirement.7 Investigatory

detentions, including warrantless stops for traffic infractions, are a recognized

exception.8 Law enforcement officers may conduct a warrantless traffic stop if

they have a reasonable and articulable suspicion that a traffic violation has

occurred or is occurring.9 The State bears the burden of proving by clear and


        4 State v. Kennedy. 107 Wn.2d 1, 4, 726 P.2d 445 (1986).
        5 State v. Kinzv. 141 Wn.2d 373, 384, 5 P.3d 668 (2000); State v. Ladson. 138 Wn.2d
343, 349, 979 P.2d 833 (1999).
       6 Kennedy. 107 Wn.2d at 4 (citing Wong Sun v. United States. 371 U.S. 471, 83 S. Ct.
407, 9 L Ed. 2d 441 (1963)).
       7 Ladson. 138 Wn.2d at 349-50.
       8 State v. Rife. 133Wn.2d140, 150-51. 943 P.2d 266 (1997); State v. Duncan, 146
Wn.2d 166, 174-75, 43 P.3d 513 (2002).
       9 Ladson. 138 Wn.2d at 349.


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No. 69607-6-1/6



convincing evidence that a warrantless seizure falls within an exception to the

warrant requirement.10

        But where the asserted basis for a traffic stop is a pretext for a warrantless

investigation, the stop violates article I, section 7 of the Washington

constitution.11 A traffic stop is pretextual if a law enforcement officer makes the

stop "not to enforce the traffic code, but to conduct a criminal investigation

unrelated to the driving."12 In this situation, the 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.'"13

        In determining whether a stop is pretextual, courts 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."14 We review de novo

whether a stop is pretextual.15

        Here, the totality of the circumstances demonstrates that the traffic stop

was not pretextual. After hearing extensive testimony, the trial court found that

"Detectives Rurey and Thomas decided to make a traffic stop as a result of the

title transfer violation" and that "[t]he decision to initiate the traffic stop was




       10 State v. Diluzio. 162 Wn. App. 585, 590, 254 P.3d 218, review denied. 272 P.3d 850
(2011); State v. Doughty. 170 Wn.2d 57, 62, 239 P.3d 573 (2010); State v. Garvin. 166 Wn.2d
242, 250, 207 P.3d 1266 (2009).
        11 State v. Nichols. 161 Wn.2d 1, 9, 162 P.3d 1122 (2007).
       12 Ladson. 138 Wn.2d at 349.
       13 State v. Arreola. 176 Wn.2d 284, 294, 290 P.3d 983 (2012) (quoting Ladson. 138
Wn.2d at 358).
       14 Ladson. 138 Wn.2d at 358-59.
       15 Arreola. 176 Wn.2d at 291.
No. 69607-6-1/7



motivated by [the traffic] violation and observation."16 These facts reflect the

detectives' subjective intent to stop the Mercedes because of the traffic violation.

        Additional evidence indicates that when the detectives followed the

Mercedes, they were not investigating any criminal activity other than the traffic

violation. According to the detectives' testimony, other than the transfer of title

violation, nothing led them to believe that the occupants were involved in criminal

or gang-related activities. Moreover, at the time the detectives entered the

license plate into the computer and decided to stop the vehicle, they did not

recognize the Mercedes or its occupants from any gang-related or criminal

investigations in which they had been involved. Nor did the detectives recognize

the occupants once they were able to observe them after making the stop.

Furthermore, during the pursuit, the detectives had no information about the

identity of the vehicle's occupants and did not take steps to obtain such

information.


       Nevertheless, Kelly claims that the detectives' delay in initiating the stop—

rather than immediately stopping the vehicle upon discovering the transfer of title

violation—indicates that they were, in actuality, searching for criminal activity

unrelated to the traffic violation. We disagree.

       Washington courts have found pretext where law enforcement officers

follow a vehicle to search for the commission of criminal conduct.17 But that did

not happen here. The detectives decided to make the stop immediately upon

        16 Clerk's Papers at 217.
        17 See, e.g., Ladson, 138 Wn.2d at 346; State v. Montes-Malindas, 144 Wn. App. 254,
257, 182 P.3d 999 (2008); State v. DeSantiago, 97 Wn. App. 446, 450-51, 983 P.2d 1173 (1999).

                                            -7-
No. 69607-6-1/8



their discovery of the title transfer violation. Any delay in stopping the Mercedes

was attributed to its excessive speed as it traveled down the street and outside of

the detectives' view. Even when the detectives sped down the street, they were

initially unable to catch up with the Mercedes. Only when the Mercedes stopped

at a traffic light were the detectives in a position to make the traffic stop,

approximately three minutes after they decided to investigate the transfer of title

violation.


        Indeed, the facts here are similar to those in Nichols. There, the law

enforcement officer "immediately pursued the vehicle after he saw what he

believed to be several infractions and activated his lights as soon as he caught

up with it."18 The supreme court rejected the defendant's claim that the stop was

pretextual.19 In so doing, the court distinguished the facts in that case from

Ladson, DeSantiago, and Myers, cases in which courts determined pretext

existed.20 In those cases, the court explained, the stops were pretextual

because the "officers suspected criminal activity and followed vehicles waiting for

commission of a traffic infraction so the vehicle could be stopped."21 Like Nichols

and unlike the pretext cases, the detectives here began to pursue the Mercedes

immediately after discovering the transfer of title violation. They activated their

emergency lights as soon as they caught up to the Mercedes at the intersection.

This stop was not pretextual.


       18 Nichols. 161 Wn.2d at 12.
       19 jd
        20 ]d at 11-12 (citing Ladson, 138 Wn.2d at 346; DeSantiago, 97 Wn. App. at 452; State
v. Myers. 117 Wn. App. 93, 97, 69 P.3d 367 (2003)).
       21 Nichols, 161 Wn.2dat12.


                                             -8-
No. 69607-6-1/9



       Kelly next asserts that, because the detectives were gang unit officers and

not general patrol officers, they were actually looking for criminal activity. In so

contending, Kelly attempts to draw parallels between the gang unit officers in

Ladson and the detectives here. This argument is unpersuasive.

       In Ladson, the gang unit officers who conducted the traffic stop admitted

to following the vehicle in order to look for a reason to stop it.22 Because the

officers' suspicion about the driver's rumored drug involvement was the actual

motivation for finding a legal reason to stop him, the supreme court held that the

stop was pretextual.23

       Kelly's reliance on Ladson is misplaced. As discussed above, the

detectives did not pursue the Mercedes to search for criminal activity. Nor did

they harbor any gang-related suspicions that motivated the traffic stop.

Notwithstanding these factual discrepancies between Ladson and the present

case, Kelly's argument fails for two reasons.

       First, whether the detectives were gang unit officers and not patrol officers

is not considered a dispositive factor in determining whether a traffic stop is

pretextual.24 The detectives provided substantial evidence evincing that their

responsibilities as gang unit officers include routine patrol duties and traffic

enforcement. Detective Rurey testified that although his focus is on gang-related

activity, his responsibilities are varied and include traffic enforcement, responding

to 911 calls, and conducting criminal investigations that are not gang related. On

       22 Ladson. 138 Wn.2d at 346.
       23 Id, at 346, 360.
       24 See Myers, 117 Wn. App. at 97; DeSantiago, 97 Wn. App. at 452.

                                           -9-
No. 69607-6-1/10



cross-examination, Detective Rurey explained that when he observes minor

traffic violations, he generally aims to conduct a traffic stop if he is able to do so.

Detective Thomas's testimony confirmed that gang unit detectives' duties are not

limited to gang-related investigations. He testified that he stops people for traffic

violations "[a]s the opportunity arises." Therefore, in light of the totality of the

circumstances, the detectives' association with the gang unit does not render the

traffic stop pretextual.

       Second, Kelly next asserts that because the detectives rarely issue traffic

citations since joining the gang unit, the stop was pretextual. But the detectives'

testimony proves the contrary.

       Detective Rurey testified at the suppression hearing that when he was a

patrol officer, he issued many more citations because he had recently graduated

from the police academy and hoped to gain experience, and because traffic

enforcement was his only duty at the time. Detective Rurey also testified that his

position in the gang unit encompasses a wider range of responsibilities and,

therefore, he issues fewer citations. Moreover, according to Detective Rurey's

testimony, his approach has changed. On the gang unit, he gives more warnings

instead of tickets when he makes traffic stops. This is in part because he seeks

"positive contact" with individuals when enforcing traffic laws. Therefore, that the

detectives seldom issue citations does not indicate pretext.

       Kelly argues, finally, that the detectives' actions once they stopped the car

suggest that the stop was pretextual. He points to the fact that Detective Rurey

opened the rear passenger door, shone his flashlight to see inside before

                                         -10-
No. 69607-6-1/11



questioning the occupants, and later asked Kelly his name, looking for criminal

activity. Again, we disagree.

        The detectives' conduct reflects their intention to ensure officer safety. At

the traffic light, the detectives observed occupants moving around through the

Mercedes' rear untinted window. But because of the dark surroundings and the

tinted windows, when approaching the vehicle, the detectives were unable to

verify how many occupants were inside or determine what they were doing. The

detectives did not know whether the occupants possessed weapons or posed a

threat to the detectives' safety. Consequently, Detective Rurey opened the

passenger door. When he noticed that Kelly and the other rear seat passenger

were not wearing seatbelts, he asked for their names. The detectives' actions

are not indicative of an attempt to investigate criminal activity unrelated to the

traffic violation.


        Under the totality of the circumstances surrounding the traffic stop, we

hold that the detectives, both objectively and subjectively, were motivated by the

need to investigate the traffic violation. The traffic stop was not a pretext.

                                SEIZURE OF KELLY

        Kelly argues in the alternative that Detective Rurey's request for his

identification while Kelly was a passenger in the traffic stop was an unlawful

seizure. He argues further that the firearm evidence should be suppressed. We

disagree.

        "Under article I, section 7... passengers are unconstitutionally detained

when an officer requests identification 'unless other circumstances give the

                                        -11 -
No. 69607-6-1/12



police independent cause to question [the] passengers.'"25 Such circumstances

include the failure to wear a seat belt, a traffic infraction.26 Moreover,

"[w]henever any person is stopped for a traffic infraction, the officer may detain

that person for a reasonable period of time necessary to identify the person."27

        Here, during the traffic stop, the detectives noticed that Kelly was not

wearing a seat belt. Their reasonable suspicion that Kelly committed this

infraction gave the detectives independent cause to question him. According to

Detective Rurey's testimony, he requested Kelly's identification because he "was

committing his own, independent law violation." The detectives therefore had the

authority to detain Kelly for a reasonable period of time in order to identify him.

Kelly was not unlawfully seized.

                                 SEIZURE OF FIREARM

        Kelly contends that the detectives had no lawful basis to seize the firearm.

We disagree and hold that the seizure of the gun was lawful.

        Kelly first argues that Detective Rurey had no basis to request Kelly's

identification, and without such identification, he would not have known that the

gun was contraband. As we already discussed in this opinion, Detective Rurey

lawfully requested Kelly's identification. Thus, this contention is meritless.

       Kelly next asserts that that the seizure of the gun was a result of an

unlawful search incident to arrest. Kelly did not make this argument to the trial



       25 State v. Rankin. 151 Wn.2d 689, 695, 92 P.3d 202 (2004) (quoting State v. Larson. 93
Wn.2d 638, 642, 611 P.2d 771 (1980)).
       26 State v. Chellv. 94 Wn. App. 254, 259-60, 970 P.2d 376 (1999); RCW 46.61.688(3).
       27 RCW 46.61.021(2).

                                            -12-
No. 69607-6-1/13



court. Instead, in an unchallenged conclusion of law, the trial court justified the

seizure under the plain view exception:

           Within several minutes of the initial stop, Detective Rurey saw the
           gun in plain view without any intrusive or unlawful search.
           Detective Rurey never entered the car prior to seeing the gun. The
           use of a flashlight and Detective Rurey's movement outside of the
           Car to get the best view possible of the interior of the Car was not
           an unlawful search.128'

           By stating that Detective Rurey saw the firearm "in plain view without any

intrusive or unlawful search" the trial court misapplied the plain view doctrine,

mistaking it for the open view doctrine. "Whereas a 'plain view' situation involves

an officer viewing an item after a lawful intrusion into a constitutionally protected

area, 'open view' involves an observation from a nonconstitutionally protected

area."29 Thus, a lawful seizure of the evidence observed in plain view "'must turn

on the legality of the intrusion that enable[d the detective] to perceive and

physically seize the property in question.'"30

           Here, Detective Rurey intruded upon a constitutionally protected area

when he opened the rear passenger door. But such an intrusion is permissible

within the scope of a proper Terry stop.

           A proper Terry stop permits police officers to conduct a limited protective

search of the passenger compartment.31 The protective search of a vehicle must

be predicated on an officer's reasonable suspicion that the suspect is dangerous


           28 Clerk's Papers at 220 (emphasis added).
           29 Kennedy, 107 Wn.2d at 10.
           30 Jd at 9 (quoting Texas v. Brown, 460 U.S. 730, 737, 103 S. Ct. 1535, 75 L. Ed. 2d 502
(1983)).
        31 State v. Larson. 88 Wn. App. 849, 850-51, 946 P.2d 1212(1997); see Terry v. Ohio.
392 U.S. 1, 21, 88 S. Ct. 1868, 20 L Ed. 2d 889 (1968).

                                                -13-
No. 69607-6-1/14



and may gain access to a weapon in the vehicle.32 Additionally, the "protective

search for weapons must be objectively reasonable, though based on the

officer's subjective perception of events."33 The existence of an objectively

reasonable concern for officer safety is determined by evaluating the entire

circumstances of the stop.34

        Detectives Rurey and Thomas conducted a limited protective search that

was justified by their concern for safety. When approaching the Mercedes, the

detectives' view of the interior was obstructed, precluding their ability to assess

any possible threat from the passengers inside. Given the detectives' concerns

for safety, opening the door was objectively reasonable. Thus, this intrusion was

proper. Furthermore, Detective Rurey immediately recognized the handgun that

was within Kelly's reach.35 Seizing that firearm was lawful.

        The trial court did not err by denying Kelly's motion to suppress.

        We affirm the judgment and sentence.
                                                                  £jx,s.

WE CONCUR:




%Z$4JrftJ>i fjP                                                 &***,
        32 State v. Glossbrener, 146 Wn.2d 670, 680-81, 49 P.3d 128 (2002).
        33 Larson, 88 Wn. App. at 853-54.
        34 Glossbrener, 146 Wn.2d at 679.
        35 See State v. Hatchie, 161 Wn.2d 390, 395, 166 P.3d 698 (2007) ("A plain view search
is legal when the police (1) have a valid justification to be in an otherwise protected area and (2)
are immediately able to realize the evidence they see is associated with criminal activity.").


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