                                                                                             FILED
                                                                                     C,:01JRT OF APPEALS
                                                                                           01%' 1SVII!

                                                                                    2013 OCT 22     AM 3: 555
                                                                                    ST4                  ST0Pa


                                                                                                   UTY




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                               DIVISION II


STATE OF WASHINGTON,                                                    No. 43522 -5 -II


                                 Appellant,


       V.



CHARLES WAYNE McLEAN,                                             UNPUBLISHED OPINION




       WORSWICK, C. J. —     The State appeals the superior court' s order vacating Charles

McLean' s district court conviction for driving under the influence of alcohol. The State argues

that the superior court erred by ruling that ( 1) the traffic stop was pretextual and therefore

unconstitutional and ( 2) McLean received ineffective assistance of counsel because his trial


counsel failed to object to improper opinion testimony. We agree with the State, reverse the

superior court' s vacation of McLean' s conviction, and reinstate McLean' s conviction.

                                                   FACTS


        Shortly after midnight on August 18, 2010, Trooper Richard Thompson of the

Washington State Patrol was traveling westbound on State Route 500 in Clark County. Ahead of

Trooper Thompson     was a car   driven   by   Charles McLean;   no other vehicles were present.
No. 43522 -5 -II




       Trooper Thompson had training and experience in identifying impaired drivers. Through

this training and experience, he knew that ( 1) alcohol causes delayed reactions that can result in a

driver',s drifting through the lane of travel and (2) alcohol impairs a person' s ability to

simultaneously perform multiple tasks such as maintaining the speed limit, staying within a lane,

and using turn signals. Trooper Thompson estimated that in 2010 he stopped about 400 drivers

for lane travel violations and he made over 200 arrests for driving under the influence.

        McLean' s car caught Trooper Thompson' s attention because it was weaving from side to

side within the left lane. Even though McLean was driving the speed limit, McLean' s weaving

made Trooper Thompson suspect that McLean might have been impaired. Trooper Thompson


followed McLean' s car and saw it cross the fog line' three times. Trooper Thompson then

activated his lights and initiated a traffic stop.

        Once McLean pulled over, Trooper Thompson approached and advised that he stopped

McLean for driving in the left lane without passing, weaving through the lane, and discarding a

lit cigarette after Trooper Thompson activated his emergency lights. Trooper Thompson

 immediately   smelled an odor of    intoxicants coming from the   vehicle."   Clerk' s Papers ( CP) at


116.


        After administering field sobriety tests, Trooper Thompson arrested McLean for driving

under the influence of alcohol. McLean refused to provide a breath sample to measure his blood

alcohol content. The State charged McLean with three counts: violating ignition interlock




  The fog line separates the left lane from the shoulder and a concrete barrier.


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No. 43522 -5 -II



requirements, third degree driving while his license was suspended, and driving under the

influence of intoxicants.


       McLean filed a motion to suppress evidence obtained from the traffic stop, arguing that

Trooper Thompson did not have a reasonable suspicion that McLean was driving under the

influence. The district court held a hearing and denied McLean' s motion in an oral ruling.

McLean then pleaded guilty to violating ignition interlock requirements and driving while his

license was suspended, but he proceeded to trial on the driving under the influence charge.

       During a jury trial, the State elicited testimony about Trooper Thompson' s training and

experience in identifying impaired drivers. The State asked Trooper Thompson why he stops

some drivers on suspicion of driving under the influence without ultimately arresting them.

Trooper Thompson replied that he arrests drivers for driving under the influence only if he

believes they are impaired by alcohol or drugs. McLean' s counsel did not object to this

testimony.

        Later, while testifying about the incident involving McLean, Trooper Thompson stated

that he arrested McLean for driving under the influence. Again, McLean' s counsel did not

object. The jury found McLean guilty of driving under the influence and, in a special verdict,

found that he refused a lawful request to test his blood or breath.

        McLean appealed to the superior court, arguing that ( 1) the district court erred by

denying his motion to suppress because the traffic stop was pretextual and ( 2) he received

ineffective assistance of counsel when his attorney failed to object to Trooper Thompson' s

                                                        for dismissal                     The State then
testimony. The     superior court agreed and remanded                   with prejudice.
No. 43522 -5 -II



sought discretionary review in this court, which our commissioner granted. Ruling Granting

Review, State v. McLean, No. 43522 -5 -II (Wash. Ct. App. July 30, 2012).

                                                 DISCUSSION


                                I. DENIAL OF MCLEAN' S MOTION TO SUPPRESS


         The State first argues that the superior court erred because the district court correctly

denied McLean' s motion to suppress evidence from the traffic stop. McLean argues ( 1) that, as a

threshold matter, we cannot effectively review the superior court' s reversal because the district

court failed to enter written findings and conclusions on the motion to suppress and ( 2) that the

traffic stop was pretextual and therefore unconstitutional. We agree with the State.

         RALJ 9. 1 governs review of the district court' s decision, whether by us or by the superior

court.   State   v.   Ford, 110 Wn.2d 827, 829 -30, 755 P. 2d 806 ( 1988).          In reviewing the district

court' s decision on a motion to suppress, we review factual determinations for substantial

evidence and conclusions of         law de   novo.   RALJ 9. 1(   a), (   b); State v. Garvin, 166 Wn.2d 242,


249, 207 P. 3d 1266 ( 2009).       Because neither party has challenged the district court' s factual

determinations, they are verities on appeal. City ofSeattle v. May, 151 Wn. App. 694, 697, 213

P. 3d 945 ( 2009), aff'd, 171 Wn.2d 847 ( 2011).          Accordingly, our review is limited to a de novo

deterinination of whether the district court properly derived conclusions of law from its factual

findings. State v. 4rmenta, 134 Wn.2d 1, 9, 948 P.2d 1280 ( 1997).

A.        This Case Is Reviewable


         As a threshold matter, McLean argues that we cannot effectively review the district

court' s decision because it failed to enter written findings of fact and conclusions of law

following the hearing on McLean' s CrRLJ 3. 6 motion to suppress. This argument lacks merit.


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No. 43522 -5 -II



             CrRLJ 3. 6( b) requires the district court to " state findings of fact and conclusions of law"


supporting its ruling        on a motion     to   suppress evidence. (     Emphasis      added.)   But CrRLJ 3. 6 does


not require the district court' s findings and conclusions to be in writing. State v. Osman, 147

Wn.   App.      867, 881    n. 8,   197 P. 3d 1198 ( 2008), rev' d on other grounds, 168 Wn.2d 632 ( 2010);

                                                                                         2
State   v.   Anderson, 51 Wn.         App.   775, 778   n. l,   755 P. 2d 191 ( 1988).       Accordingly, the absence of

written findings and conclusions does not preclude our review of the district court' s denial of a

motion to suppress. Anderson, 51 Wn. App. at 778 n. 1.

             McLean further claims that the district court' s oral decision failed to address his


argument that the traffic stop was pretextual. We disagree because the district court properly

declined to reach the issue of pretext. The district court concluded that Trooper Thompson


stopped McLean on the basis of a reasonable suspicion that McLean was driving under the

influence of alcohol. Thus, for Trooper Thompson to conduct a traffic stop to investigate

McLean for        driving   under     the influence, " the      use of pretext would     be unnecessary."   State V.


Ladson, 138 Wn.2d 343, 353, 979 P. 2d 833 ( 1999). McLean' s threshold arguments fail.


B.           The Traffic Stop Was Lawful

             The State argues that Trooper Thompson conducted a lawful traffic stop based on a

reasonable suspicion that McLean was driving under the influence. McLean argues that the

traffic stop was unconstitutional because it was pretextual. We agree with the State.




2 CrRLJ 3. 6 is unlike CrR 3. 6, which requires the superior court to enter written findings and
conclusions on a motion to suppress. Anderson, 51 Wn. App. at 778 n. 1.




                                                                  R
No. 43522 -5 -II



          Both the Fourth Amendment and article I, section 7 of the Washington Constitution

prohibit unreasonable seizures.    State   v.   Kennedy,   107 Wn.2d 1, 4, 726 P. 2d 445 ( 1986). A


traffic stop is a seizure. Kennedy, 107 Wn.2d at 4. Warrantless seizures are per se unreasonable,

unless an exception to the warrant requirement applies. Ladson, 138 Wn.2d at 349. The State


bears the burden of establishing an exception to the warrant requirement. Ladson, 138 Wn.2d at

350.


          One exception is an investigative stop, including a traffic stop, that is based on a police

officer' s reasonable suspicion of either criminal activity or a traffic infraction. State v. Arreola,

176 Wn.2d 284, 292 -93, 290 P. 3d 983 ( 2012);       see Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868,

20 L. Ed. 2d 889 ( 1968).    A reasonable suspicion exists when specific, articulable facts and


rational inferences from those facts establish a substantial possibility that criminal activity or a

traffic infraction has occurred or is about to occur. State v. Snapp, 174 Wn.2d 177, 197 -98, 275

P. 3d 289 ( 2012).


          When reviewing the lawfulness of an investigative stop, we evaluate the totality of the

circumstances presented to the police officer. State v. Doughty, 170 Wn.2d 57, 62, 239 P. 3d 573

 2010).    Those circumstances may include the police officer' s training and experience. State v.

Glover, 116 Wn.2d 509, 514, 806 P. 2d 760 ( 1991).


          Here, the traffic stop was lawful because Trooper Thompson had a reasonable suspicion

that McLean was driving under the influence. Trooper Thompson observed McLean' s vehicle

weave within its lane and cross onto the fog line three times. From the articulable fact of this

observation, and from his training and experience identifying driving under the influence, it was

rational   for Trooper Thompson to infer that there        was a substantial   possibility that McLean   was
No. 43522 -5 -II




driving under the influence. That substantial possibility establishes a reasonable suspicion

permitting Trooper Thompson to make a warrantless traffic stop. See Arreola, 176 Wn.2d at
                                                     3
292 -93;   Snapp,      174 Wn. 2d    at   197 -98.


           Nonetheless, McLean claims that the traffic stop was pretext to investigate him for

driving under the influence.4 We disagree.
           A traffic stop is pretextual if it is conducted not to enforce a violation of the traffic code

but to investigate some other crime, unrelated to driving, for which reasonable suspicion and a

warrant are lacking. Ladson, 138 Wn.2d at 349.5 McLean claims ( 1) Trooper Thompson had a

reasonable suspicion only of McLean' s driving in the left lane without passing, and ( 2) Trooper

Thompson lacked a reasonable suspicion of driving under the influence. But as we have

explained above, Trooper Thompson had a reasonable suspicion that McLean was driving under

the influence, and he conducted this traffic stop to investigate that crime. Therefore this traffic

stop was not pretextual. McLean' s argument fails.


3 The State further argues that the superior court misplaced its reliance on State v. Prado, 145
Wn.  App. 646, 186 P. 3d 1186 ( 2008) ( holding that a one -second incursion over the shoulder line
did not establish a reasonable suspicion of a failure to remain " as nearly as practicable" within a
single   lane   of   travel).   Because we review the district court' s decision de novo, we do not address
the superior court' s reasoning. State v. Weaver, 161 Wn. App. 58, 63, 248 P. 3d 1116 ( 2011).

4 The State asserts that McLean failed to preserve his claim of pretext because he raised it for the
first time on appeal in the superior court. But the State is incorrect. In his memorandum
supporting his motion to suppress, McLean argued to the district court that the traffic stop was
pretextual.




 A pretextual traffic stop violates article I, section.7 of the Washington Constitution. Ladson,
138 Wn.2d at 353; see also Arreola, 176 Wn.2d at 294. But a pretextual traffic stop does not
violate the Fourth Amendment. See Whren v. United States, 517 U. S. 806, 813, 116 S. Ct. 1769,
135 L. Ed. 2d 89 ( 1996).




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No. 43522 -5 -II



                                   11. INEFFECTIVE ASSISTANCE OF COUNSEL


          The State further argues that McLean did not receive ineffective assistance of counsel.


McLean claims he received ineffective assistance of counsel when his attorney did not object to

Trooper Thompson' s allegedly improper opinion testimony. We agree with the State.

          Whether a defendant received ineffective assistance of counsel is a mixed question of law


and fact, which we review de novo. In re Pers. Restraint ofFleming, 142 Wn.2d 853, 865, 16

P. 3d 610 ( 2001).      When claiming ineffective assistance of counsel, a defendant bears the burden

of satisfying the two - rong test announced in Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
                      p

2052, 80 L. Ed. 2d 674 ( 1984). State v. Hendrickson, 129 Wn.2d 61, 77 -78, 917 P. 2d 563


 1996).    First, the defendant must show that counsel' s performance was deficient. Fleming, 142

Wn. 2d    at   865.   Second, the defendant must show that the deficient performance prejudiced the


defendant' s case. Fleming, 142 Wn.2d at 865. A failure to satisfy either prong is fatal to an

ineffective assistance of counsel claim. Strickland, 466 U. S. at 687.


          McLean' s counsel did not object to Trooper Thompson' s testimony that ( 1) he arrests

drivers for driving under the influence only if he believes they are impaired by alcohol or drugs

and ( 2) he arrested McLean. McLean now contends that his counsel was ineffective for failing

to object because Trooper Thompson' s testimony conveyed an improper opinion that McLean
                6
was   guilty.       We disagree.




6 McLean concedes that Trooper Thompson properly opined that McLean was intoxicated. See
City of Seattle v. Heatley, 70 Wn. App. 573, 576, 578 -79, 854 P. 2d 658 ( 1993). But McLean
argues that Trooper Thompson' s testimony " went well beyond proper opinion" because he also
stated that he arrested McLean. Br. of Resp' t at 26.
No. 43522 -5 -II



       McLean fails to carry his burden to show that his attorney' s performance was deficient.

See Hendrickson, 129 Wn.2d at 77 -78. When determining whether counsel' s performance was

deficient, we begin with a strong presumption of counsel' s effectiveness. State v. McFarland,

127 Wn.2d 322, 335, 899 P. 2d 1251 ( 1995).             Counsel' s performance is deficient if it falls below


an objective standard of reasonableness, under all the circumstances. Fleming, 142 Wn.2d at

865 -66. But counsel' s performance is not deficient if it can be characterized as a legitimate trial

tactic. State v. Kyllo, 166 Wn.2d 856, 863, 215 P. 3d 177 ( 2009).

       McLean claims that " there was no possible tactical reason for trial counsel to refrain from


objecting" to Trooper Thompson' s testimony.                 Br. of Resp' t at 27. But it can be a legitimate

trial tactic to withhold an objection to avoid emphasizing inadmissible evidence. In re Pers.

Restraint ofDavis, 152 Wn.2d 647, 714, 101 P. 3d 1 ( 2004).

        While laying foundation for testimony based on Trooper Thompson' s experience in

investigating driving under the influence of alcohol or drugs, the State asked why some of his

investigations do not lead to arrests. Trooper Thompson explained that " if you' re not impaired,

you' re not   going to    get arrested   for DUI. So if I do the      standardized     field sobriety tests ... [   a] nd




determine that they'      re not   impaired; they do   not get arrested."         CP at 106 -07. Later, after


describing his investigation of McLean and administration of field sobriety tests, Trooper

Thompson      stated, "   I   arrested [ McLean]   for DUI." CP       at   131.   McLean' s attorney did not object

to these statements.




7 McLean asserts that the superior court implicitly determined that counsel' s failure to object was
not a legitimate trial tactic. But because we review the district court' s decision de novo, the
superior court' s   determinations       are not   binding   on us.   Weaver, 161 Wn. App. at 63.




                                                             4
No. 43522 -5 -II




          Under the circumstances here, withholding an objection can be characterized as a

legitimate trial tactic seeking to avoid emphasizing Trooper Thompson' s testimony about

McLean' s intoxication and arrest. See Davis, 152 Wn.2d at 714. Because McLean' s counsel' s

performance did not fall below an objective standard of reasonableness, it was not deficient.


Fleming, 142 Wn.2d at 865 -66. Therefore McLean' s ineffective assistance claim fails.

          McLean also fails to demonstrate prejudice.. A deficient performance prejudices the

defendant' s case when, within reasonable probabilities, the trial' s result would have been

different had the deficient   performance not occurred..   Hendrickson, 129 Wn.2d     at   78. Counsel' s


failure to object to evidence cannot prejudice the defendant unless the trial court would have

ruled the evidence inadmissible. Hendrickson, 129 Wn.2d at 79 -80; McFarland, 127 Wn.2d at

337 n.4. Here, McLean fails to show that Trooper Thompson' s testimony was inadmissible.

          It is generally improper for a witness to opine that the defendant is guilty; to do so is to

invade the jury' s exclusive province. State v. Demery, 144 Wn.2d 753, 759, 30 P. 3d 1278

 2001).    To determine whether a witness' s statement is improper opinion testimony on the

defendant' s guilt, we consider the circumstances of the case, including the type of witness

involved, the nature of the testimony, the nature of the charges, the type of defense, and other

evidence before the trier of fact. Demery, 144 Wn.2d at 759; City ofSeattle v. Heatley, 70 Wn.

App. 573, 579, 854 P. 2d 658 ( 1993).

          However, a police officer may opine that, based on his experience and observations, the

defendant was intoxicated and impaired. Heatley, 70 Wn. App. at 579 -80. Under the

circumstances of this case, Trooper Thompson' s testimony did no more than convey his opinion

that McLean was intoxicated.




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No. 43522 -5 -II



           Arguing to the contrary, McLean claims that " the fact of an arrest is not [ admissible as]

evidence        because it    constitutes      the arresting     officer' s opinion       that the defendant is guilty." Br. of



Resp' t    at   25.   But McLean cites no authority stating that the fact of an arrest is categorically

inadmissible. And the two cases McLean cites are distinguishable.


           McLean first        cites   State   v.   Carlin, 40 Wn.           App. 698,   700 P. 2d 323 ( 1985).   In Carlin, a


police officer testified that a police dog followed a " fresh guilt scent" from the scene of a

burglary to the location where one defendant was found. 40 Wn. App. at 703; see id. at 700. But

the Carlin court stated that this testimony " arguably was an improper opinion" before deciding

that any    error was        harmless. 40 Wn.            App.   at   1703.   Moreover, stating that a defendant emitted an

objectively ascertainable " guilt scent" is not comparable to stating the fact of an arrest.

           McLean next         cites   Warren       v.   Hart, 71 Wn. 2d 512, 429 P. 2d 873 ( 1967), another case that


fails to   support     his   argument.      Warren is a civil case in which defense counsel argued that the


jury should find that a driver was not negligent because police officers decided not to issue a

traffic    citation at   the   scene of a car accident.              71 Wn.2d     at   517.   Warren says nothing about

admitting evidence showing the fact of a criminal defendant' s arrest.

           Because McLean fails to show that evidence of his arrest was inadmissible, his attorney' s

failure to object to this evidence did not prejudice his case. McLean' s ineffective assistance of

counsel claim fails.




                                                                        11
No. 43522 -5 -II




        The district court properly denied McLean' s motion to suppress, and McLean received

the effective assistance of counsel. Therefore, we reverse the superior court' s vacation of


McLean' s conviction, and we reinstate McLean' s conviction.


        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.




                                                                     Worswick, C. J.




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