                                                                                                                                    FILE
                                                                                                                   CO-URT OF APPEALS'
                                                                                                                                  DIVISION LI

                                                                                                                  2014 JUN 10 111 8: 4 I

         IN THE COURT OF APPEALS OF THE STATE OF WASHIN                                                                                         014


                                                  DIVISION II
                                                                                                                                       oki:
STATE OF WASHINGTON,                                                               No. 44079 -2 -II


                                       Respondent,


          v.




JAMES VINCENT MEYERS,                                                        UNPUBLISHED OPINION


                                       Appellant.


          HUNT, J. —        James Vincent Meyers appeals his jury trial convictions for unlawful

possession     of a   controlled     substance ( morphine)        and third degree driving with a suspended

license ( DWLS).       He argues that the trial court erred in denying his motion to suppress evidence
                                                                                                                             1,
because the statutory basis for the initial stop, RCW 46. 16A.200( 5)(                      a)(   iii)    and (   7)(   c)        which



require    that   vehicle    license   plates   be kept     clean,    plainly    visible,   and      not       obstructed,           are

unconstitutionally vague as applied. Disagreeing, we affirm.

                                                         FACTS


          On May 20, 2012, at about 11: 30 PM, Centralia Police Officer William Phipps was on
                                                                                                                                       2
routine patrol when         he   observed a van pull      away from the         curb and    onto     the       main     roadway.


Driving behind        the   van,   Phipps   noticed   that the   van' s "   trailer ball hitch" obscured two of the



1
    The legislature   amended       RCW 46. 16A. 200 twice in 2014. LAws              OF    2014,        ch.   80, § 1, ch. 181,
    2.   The amendments did not alter the statute in any way relevant to this case; accordingly, we
cite the current version of the statute.

2
    We base our recitation of the facts on the trial court' s written findings of fact issued following
the suppression  hearing, which Meyers does not challenge.
No. 44079 -2 -II



characters on       the   van' s rear   license   plate.   Clerk' s Papers ( CP) at 99 ( Findings of Fact ( FF) 3).


Believing this to be a traffic infraction, Phipps stopped the van, driven by James Vincent Meyers.

Phipps arrested Meyers after learning that his license was suspended and that there was a warrant

for his   arrest.   During a search of Meyers incident to his arrest, Phipps found a single morphine

pill.



          The State charged Meyers with unlawful possession of a controlled substance ( morphine)


and     third degree DWLS.              Meyers moved to suppress the evidence found during the search

incident to arrest, arguing that RCW 46.26A.200( 5) and ( 7) did " not make it unlawful to have a

trailer ball hitch that may         obstruct a partial view of     the license     plate,"   that photographic evidence


showed     that the " trailer ball hitch"          did not obscure the license plate, and that the stop was

unlawful. CP at 10.

                                                                       3
          The trial   court    denied Meyers'       suppression motion,      concluding:


          1.         RCW 46[.] 16A[.] 200( 5)( a)( iii) requires that vehicle license plates be kept
                     clean  and be able to be plainly seen and read at all times[.]       RCW
                     46[.] 16A[.] 200( 7)( c) makes it unlawful to use holders, frames, or other
                     materials   that    change, alter, or make      a   license     late or plates illegible[.]
                     The obstruction of a license plate from view by a trailer ball hitch is a civil
                     infraction[.]


          2.         Officer Phipps had a reasonable suspicion that the Defendant committed a
                     traffic infraction    prior   to stopping the Defendant'        s vehicle[.]   Specifically,
                     Officer Phipps observed that the Defendant' s rear license plate was
                     illegible because it was obstructed by the vehicle' s trailer ball hitch[.]



3 The trial court also found that although Meyers had submitted photographs showing the license
plate was      clearly    visible   from   some angles, "     the angles from which the pictures [ were] taken
 were] not the same as the vantage point that Officer Phipps had while he was driving in his
vehicle." - CP at     99 ( FF 4).
No. 44079 -2 -II



            3.        The basis for the traffic stop in this case was reasonable suspicion of a
                     traffic infraction[.]There is no evidence suggesting that the traffic stop
                      was a pretext stop[.]


CP    at   100 ( Conclusions          of   Law 1 - 3).     Based on this admitted evidence, a jury found Meyers

guilty     of unlawful        possession       of a      controlled          substance   and   third degree DWLS.       Meyers


appeals.




                                                              ANALYSIS


            Meyers contends that the trial court erred in denying his suppression motion. He argues

that RCW 46. 16A.200( 5)( a)( iii) and ( 7)( c) are unconstitutionally vague as applied to the facts of

this case and, therefore, cannot provide a legal basis for the traffic stop. This argument fails.

                When reviewing the denial                of   a   suppression        motion, [ we]   determine . . .    whether




substantial evidence supports the challenged findings of fact and whether the findings support


the   conclusions of        law." State       v.   Garvin, 166 Wn.2d 242, 249, 207 P. 3d 1266 ( 2009).                 Because


Meyers does not challenge any of the trial court' s findings of fact, they are verities on appeal.

State      v.    Hill, 123 Wn.2d 641,              644, 870 P. 2d 313 ( 1994).             Nor, aside from challenging the

constitutionality        of    the    statutory basis for the stop,                  does Meyers otherwise        challenge the


reasonableness         of     the    officer' s    stop.      Thus, we confine            our analysis to his constitutional


challenge; we review this legal issue, including the trial court' s pertinent conclusions of law, de

novo.       Garvin, 166 Wn.2d at 249.


            A stop based on reasonable suspicion is generally valid even if it is predicated on a

statute that the courts subsequently find unconstitutional because the officer' s reasonable

suspicion determination rests on the facts and circumstances known to the officer at the time of


the stop.        See State    v.   Carnahan, 130 Wn.              App.       159, 165, 122 P. 3d 187 ( 2005) (   citing Michigan



                                                                         3
No. 44079 -241



v.   DeFillippo, 443 U. S. 31, 37 -38, 99 S. Ct. 2627, 61 L. Ed. 2d 343 ( 1979); State v. White, 97


Wn.2d 92, 103, 640 P. 2d 1061 ( 1982)); see also State v. Potter, 156 Wn.2d 835, 842 -43, 132

                        4 "'
P. 3d 1089 ( 2006).              Police are charged to enforce laws until and unless they are declared

unconstitutional. "'        Carnahan, 130 Wn.                App.    at      165 ( quoting DeFillippo, 443 U. S.               at   38).   A


stop " is invalid only if the statute at issue is ` so grossly and flagrantly unconstitutional that any

person of reasonable prudence would                       be bound to         see   its flaws. "'   Carnahan, 130 Wn. App. at

165 ( quoting White, 97 Wn.             App.         at   103 ( internal      quotation marks omitted));              see also State v.


Brockob, 159 Wn.2d 311, 342                 n. 19,    150 P. 3d 59 ( 2006). Such is not the case here.


          Not     having       been    ruled         otherwise,      RCW            46. 16A.200( 5)(   a)(   iii)   and (    7)( c) 5 were

presumptively valid when Phipps stopped Meyers. Meyers argues that these statutory provisions

are vague because whether the license plate is clearly visible " depends entirely on the officer' s

perspective,"       which      creates "    an   inordinate        amount           of police   discretion"         and leads to their


arbitrary    application.        Br.   of   Appellant         at   13.       Meyers does not, however, assert that these



4
     We acknowledge that these              cases address arrests rather               than   initial traffic       stops_   But because
the "   reasonable     suspicion"       standard applicable to traffic stops is less burdensome than the
    probable cause" standard applicable to arrests, these cases are equally pertinent here.

5 RCW 46. 16A.200 provides in part:
      5)( a) Display. License plates must be:

           iii)   Kept clean and be able to be plainly seen and read at all times[.]

            7) Unlawful acts. It is unlawful to:


            c)    Use holders, frames, or other materials that change, alter, or make a license
          plate or plates      illegible.
                                     License plate frames may be used on license plates only
          if the frames do not obscure license tabs or identifying letters or numbers on the
          plates and the license plates can be plainly seen and read at all times[.]




                                                                         4
No. 44079 -2 -II




provisions are so grossly and flagrantly unconstitutional that any reasonable person could see
        flaws6;
their             nor   does it   appear    to   us   to be the   case.   Because Meyers fails to show that RCW


46. 16A.200( 5)( a)( iii) and ( 7)( c) are grossly and flagrantly unconstitutional, we need not address

the underlying constitutionality of these statutory provisions, and his challenge to the statutory

basis for his stop fails.         Holding that the trial court did not err in denying Meyers' motion to

suppress, 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.




6
    Instead of applying this proper test, both Meyers and the State focus on whether RCW
46. 16A.200( 5)(    a)( iii) and ( 7)( c)   are   unconstitutionally      vague under   the facts here.
