                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                          July 8, 2020

      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    STATE OF WASHINGTON                                            No. 53033-3-II

                                Respondent,

           v.

    MATTHEW CHRISTIAN CALDWELL,                              UNPUBLISHED OPINION

                                Appellant.

          MELNICK, J. — Matthew Christian Caldwell appeals his conviction for unlawful possession

of a controlled substance, methamphetamine, with intent to deliver within 1,000 feet of a school.

He contends the trial court erred in denying his motion to suppress the contraband found on him

and inside his vehicle because the stop that led to the discovery of these items was pretextual. We

affirm.

                                              FACTS1

          Longview Police Detective Calvin Ripp was standing outside of a hotel during the

execution of a search warrant when Caldwell pulled into the hotel’s parking lot. Ripp could hear

that the vehicle obviously did not have a muffler. Caldwell appeared to be heading to a parking

spot near the room the officers were searching. The hotel was in a high crime area. Caldwell went

from “calm to panicking” when he saw the officers at the hotel. Clerk’s Papers (CP) at 42.




1
  The following facts rely in part on the trial court’s CrR 3.6 findings of fact, which are
unchallenged and therefore verities on appeal. State v. O’Neill, 148 Wn.2d 564, 571, 62 P.3d 489
(2003).
53033-3-II


         Ripp decided to contact Caldwell for the infraction of driving a vehicle not being

equipment with a muffler.2 Ripp also wanted to contact Caldwell because he was in a high crime

area, he appeared to be going to the hotel room where officers were serving a search warrant, and

Caldwell’s reaction when he saw police.

         Ripp approached Caldwell and asked for his license and registration. Ripp discovered

Caldwell had an outstanding arrest warrant. In a search incident to arrest, Ripp found $5,269 in

Caldwell’s pocket.     In Caldwell’s vehicle, officers found plastic bags, a digital scale, and

methamphetamine.3 The hotel had a school within 1,000 feet of it.

         The State charged Caldwell with possession of a controlled substance with intent to deliver

within 1,000 feet of a school. Caldwell filed a motion to suppress the evidence seized during the

search. Caldwell argued that Ripp did not have probable cause to stop Caldwell. During the

motion hearing, Caldwell also argued that the stop was pretextual.

         The trial court denied the motion, concluding “Ripp had probable cause to believe that

[Caldwell] had committed a traffic violation by driving a vehicle with no muffler.” CP at 42.

During its oral ruling, the court also concluded the stop was not pretextual because an infraction

first occurred in front of the officer and then other suspicious activity occurred giving rise to the

stop. The court stated that this situation is different than if the officer first “had the suspicion and

then . . . followed [Caldwell] out onto the streets until he had . . . actually observed the infraction.”

Report of Proceedings (Oct. 17, 2018) at 27.




2
 Under RCW 46.37.390(1), “Every motor vehicle shall at all times be equipped with a muffler in
good working order and in constant operation to prevent excessive or unusual noise.
3
    The search of Caldwell’s vehicle was based on community custody violations.


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           Following a bench trial based on stipulated facts, the court found Caldwell guilty as

charged. Caldwell appeals.

                                              ANALYSIS

           Caldwell argues that the trial court erred by concluding Ripp’s encounter with Caldwell

was not an unlawful pretextual stop. We disagree.

I.         STANDARD OF REVIEW

           Following a suppression hearing, we review challenged findings of fact to determine

whether they are supported by substantial evidence. State v. O’Neill, 148 Wn.2d 564, 571, 62 P.3d

489 (2003). Unchallenged findings are verities on appeal, and challenged findings supported by

substantial evidence are binding. O’Neill, 148 Wn.2d at 571. We review the trial court’s

conclusions of law following a suppression hearing de novo. State v. Homan, 181 Wn.2d 102,

106, 330 P.3d 182 (2014). We affirm conclusions of law that are supported by the findings of fact.

State v. Vickers, 148 Wn.2d 91, 116, 59 P.3d 58 (2002).

II.        Legal Principles

           Under the Fourth Amendment to the United States Constitution and article I, section 7 of

the Washington State Constitution, a police officer generally cannot seize a person without a

warrant. State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009). Warrantless searches are

presumed unreasonable subject to a few exceptions that are narrowly drawn. State v. Tyler, 177

Wn.2d 690, 698, 302 P.3d 165 (2013). A lawful Terry4 stop is one of the exceptions to the warrant

requirement. State v. Ladson, 138 Wn.2d 343, 349, 979 P.2d 833 (1999).




4
     Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).


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        “For a Terry stop to be permissible, the State must show that the officer had a ‘reasonable

suspicion’ that the detained person was, or was about to be, involved in a crime.” State v. Z.U.E.,

183 Wn.2d 610, 617, 352 P.3d 796 (2015) (quoting State v. Acrey, 148 Wn.2d 738, 747, 64 P.3d

594 (2003)). If an officer has a reasonable articulable suspicion that a suspect is involved in

criminal activity, the officer may detain the suspect, request him or her to produce identification,

and ask him or her about his or her activities. State v. Little, 116 Wn.2d 488, 495, 806 P.2d 749

(1991). Terry stops have been extended to traffic infractions. State v. Duncan, 146 Wn.2d 166,

173-74, 43 P.3d 513 (2002).

       But the stop must not be pretextual. Ladson, 138 Wn.2d at 358. A traffic stop is pretextual

when an officer relies on some legal authorization as a mere pretext to justify the seizure when the

true reason for the seizure is not constitutionally justified. Ladson, 138 Wn.2d at 358. “[A] traffic

stop is not unconstitutionally pretextual so long as 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.” State v. Arreola, 176

Wn.2d 284, 297, 290 P.3d 983 (2012). When determining whether a stop is pretextual, we

“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. State v. Boisselle, 194 Wn.2d 1, 15,

448 P.3d 19 (2019) (quoting Ladson, 138 Wn.2d at 359). “When an unconstitutional search or

seizure occurs, all subsequently uncovered evidence becomes fruit of the poisonous tree and must

be suppressed.” Ladson, 138 Wn.2d at 359.

       Here, based on the unchallenged findings of fact, Ripp stood outside a hotel while other

officers executed a warrant. Caldwell pulled into the hotel parking lot with a loud vehicle that did

not have a muffler. This is a traffic infraction. RCW 46.37.390(1). Ripp decided to contact



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53033-3-II


Caldwell based on the traffic violation. Ripp lawfully asked for Caldwell’s identification. Little,

116 Wn.2d at 495. Ripp then learned about a warrant for Caldwell’s arrest. An arrest and

subsequent search incident to the arrest were lawfully conducted. See State v. Rothenberger, 73

Wn.2d 596, 599, 440 P.2d 184 (1968) (after learning Rothenberger was wanted on a felony charge,

police officer had “not only . . . the right but the duty to pursue Rothenberger and arrest him.”).

       Caldwell relies on Boisselle to argue the stop was pretextual, but that case is

distinguishable. There, law enforcement arrived at a home based on two anonymous tips of

criminal activity, smelled what they thought was a decomposing body, and then waited 2 hours to

enter the home. Boisselle, 194 Wn.2d at 15. Officers justified their warrantless entry on the

emergency aid community caretaking function. Boisselle, 194 Wn.2d at 15. The trial court denied

Boisselle’s motion to suppress evidence found inside the home and the court of appeals affirmed.

Boisselle, 194 Wn.2d at 7-8. The Supreme Court reversed, holding that because “the officers used

the emergency aid community caretaking function as a mere pretense for an evidentiary search . .

. the officers’ warrantless search of Boisselle’s home was pretextual.” 194 Wn.2d at 16. The facts

in Boisselle are distinguished from the facts of this case. Ripp did not approach Caldwell to justify

a suspicion that he was involved in drug activity; rather, Ripp approached him because he

witnessed a traffic violation. Ripp then discovered a valid arrest warrant. He conducted a search

pursuant to Caldwell’s arrest on the warrant. That search resulted in the seizure of the contraband.

       The findings of fact support the trial court’s conclusion that the stop was not pretextual.

Thus, the trial court did not err in denying Caldwell’s motion to suppress.




                                                  5
53033-3-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.




                                                            Melnick, J.

We concur:




        Worswick, P.J.




        Sutton, J.




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