       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON                                    c-)

STATE OF WASHINGTON,                       )                                       r.'
                                                                                   fr. ta...4
                                           )       DIVISION ONE
                       Respondent,         )
                                           )       No. 76511-6-1                     L.,     77.-a rri
                                                                                              ci)rriCt.
                  V.                       )                                          1:30   59
                                                                                              Z.r-
                                           )       UNPUBLISHED OPINION                9
                                                                                              Gltr:

PAMELA E. BELL,                            )

                       Petitioner.         )       FILED: December 3, 2018
                                           )
       DWYER, J. — Following a traffic stop, Pamela Bell was charged with and

convicted of driving under the influence. On discretionary review, Bell avers that

the trial court erred by denying her motion to suppress evidence gathered as a

result of the stop, claiming that substantial evidence did not support the trial

court's finding that her driving was abnormal, thus justifying the officers' decision

to initiate an investigatory detention. Finding no error, we affirm.



       On February 13, 2013, two officers of the Port of Seattle Police

Department responded to a call concerning an intoxicated female driver

"attempting to leave" the toll plaza outside the parking garage at SeaTac

International Airport. The identity of the caller was unknown. The toll plaza

consists of between 12 and 15 one-way lanes of traffic between the garage's exit

and a series of toll booths. When Officer Ryan Leavengood and his police

training officer arrived at the toll plaza, traffic within the plaza was moderate, with
No. 76511-6-1/2


between 15 and 20 vehicles either driving through the area or queuing at the toll

booths.

       Upon the officers' arrival, a toll booth employee gestured to them and

pointed to a "small coupe style vehicle that was parked inside the toll plaza." The

officers could not drive to the vehicle because their patrol car was parked on the

other side of the one-way toll gates. The coupe style vehicle, which was

operated by Bell, was near the southeast side of the toll plaza and was not in any

lane of traffic. The officers, unable to tell if the vehicle's engine was running,

walked toward the vehicle to speak with its driver. Officer Leavengood sought "to

ensure that [Bell] was in fact not impaired before she took off through the toll

plaza."

       As Officer Leavengood approached, Bell's vehicle moved from the

southeast side of the plaza and across several lanes into exit lane 8 or 9. Officer

Leavengood told Bell to stop, and she did. A second patrol car, driven by Officer

Raymond Blackwell, arrived at the scene from the parking garage and parked

behind Bell's vehicle.

       Officer Leavengood spoke With Bell and noticed signs that she was

intoxicated. Bell agreed to perform voluntary field sobriety tests. After a poor

performance on each test, she was placed under arrest.

       The State charged Bell with driving under the influence (DUI) pursuant to

RCW 46.61.502. Before trial, Bell moved to suppress evidence gathered from

that which she alleged to be an unlawful stop. The district court held a hearing

on this motion at which Officers Leavengood and Blackwell testified. Officer


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No. 76511-6-1/3


Leavengood testified that he learned, from dispatch, that there was "an

intoxicated driver attempting to leave the toll plaza." Blackwell testified that the

officers were advised that an unnamed "toll plaza individual" had reported an

intoxicated female driver in a vehicle with Alaska license plates. Both officers

testified to their training and experience in identifying impaired drivers:

Leavengood estimated that he had made between 50 and 60 investigations for

DUI during his career, while Blackwell stated that he had made over 200 such

investigations. Both officers testified that a driver's failure to obey lane markings

is one indicator that the driver may be impaired.

       The trial court issued a written order denying Bell's motion to suppress. In

its order, the trial court noted that the officers acted in response to both the

telephone call from the unidentified informant and the tip from the toll plaza

employee who "flagged down" Leavengood and "pointed to the defendant's

coupe style vehicle," and further, that "[w]hen Officer Leavengood and Officer

Blackwell arrived, they observed the identified vehicle sitting inside the toll plaza

area, but not moving. This is not normal behavior for vehicles approaching the

toll plaza." The trial court concluded that, given that the officers saw Bell's

vehicle "stopped in the toll plaza entrance in a location that is not designed or

normally used for such stops," the officers had "sufficient corroboration of the toll

worker's identification to justify an initial contact." Thus, the trial court denied

Bell's motion.

       Following a jury trial, Bell was found guilty of DUI. Bell, assigning error to

the denial of her motion to suppress evidence, appealed the conviction to the


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No. 76511-6-1/4


superior court, which affirmed. We subsequently granted Bell's motion for

discretionary review.

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       Bell first assigns error to the trial court's factual finding that the initial,

stationary position of her vehicle on the side of the toll plaza was "not normal

behavior for vehicles approaching the toll plaza." This is erroneous, she asserts,

because substantial evidence did not support the finding. We disagree.

       In reviewing the denial of a motion to suppress, we determine whether the

trial court's findings of fact are supported by substantial evidence. State v.

Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009). Evidence is substantial

when it is "sufficient. .. to persuade a fair-minded person of the truth of the

stated premise." State v. Thetford, 109 Wn.2d 392, 396, 745 P.2d 496 (1987).

Conclusions of law from an order pertaining to the suppression of evidence are

reviewed de novo. State v. Duncan, 146 Wn.2d 166, 171,43 P.3d 513(2002).

       The testimony offered at the pretrial hearing on Bell's motion to suppress

gave the trial court a sufficient basis to conclude that parking at the edge of the

toll plaza was not normal driving behavior. Officer Leavengood stated that the

area in which Bell's car was parked was "outside of the garages" where other

cars would park. Officers Leavengood and Blackwell both testified that the

portion of the plaza wherein Bell was located did not contain any parking area,

but, rather, contained between 12 and 15 lanes dedicated to through traffic.

Officer Leavengood also testified that, at the time he arrived, between 15 and 20

cars were either "in line waiting to get out" of the plaza or "exiting the parking


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No. 76511-6-1/5


structure on their way to the toll plaza," making Bell's stationary vehicle stand

out.

       Based on these observations, a fair-minded person could determine that

the position of Bell's parked car, the only parked car in this location, was unusual.

       Bell contends otherwise, presenting the narrative that she had

momentarily stopped on a "shoulder" of the toll plaza. She offers that vehicles

may often be found stopped on the shoulder of a roadway for innocent reasons,

that the officers had likely seen vehicles in such positions before, and that "it is

not difficult to imagine circumstances that would involve [this shoulder area's]

regular use [for parked vehicles]." She also avers that Officer Leavengood did

not have the "special training transforming the observation into suspicious

behavior," and that Leavengood may not have been experienced enough in his

position with the Port of Seattle Police to ascertain what was or was not unusual

behavior for vehicles in this toll plaza.

       Bell, however, does not point to any evidence beyond the realm of the

hypothetical indicating that drivers regularly stopped on the side of the toll plaza

before exiting. Nor does she present any authority indicating that a police officer

cannot make determinations of driver and vehicle behavior on a roadway unless

they have reached some minimum threshold level of familiarity with that

particular road surface. Even if Officer Leavengood had not previously had the

opportunity to see typical traffic flow,in the toll plaza, he gained that opportunity

when he arrived on the scene and saw various vehicles moving through in

marked lanes while Bell failed to do so. Bell's claim about Leavengood's lack of


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No. 76511-6-1/6


special training is plainly contradicted by the record, which indicates that he had

completed multiple police training courses on identifying impaired drivers, and

that he had previously apprehended such drivers. Finally, officers have the

discretion to draw inferences from conduct even where that conduct may have an

innocent explanation. State v. Samsel, 39 Wn. App. 564, 570-71, 694 P.2d 670

(1985). The trial court's finding of fact is supported by substantial evidence.

                                             111

       Next, Bell contends that the trial court erred by ruling that the officers had

a reasonable, articulable suspicion under the totality of the circumstances to

justify the initial detention. This is so, Bell asserts, because the informant's tip

did not possess the requisite indicia of reliability to justify the officers' reliance

thereon, and because her conduct did not pose a danger to the public. Thus,

Bell asserts, the Terrvi stop was not justified. We disagree.

       Warrantless searches are presumed to be unreasonable and the State

bears the burden of showing that a seizure falls within an exception to the

warrant requirement. State v. Z.U.E., 183 Wn.2d 610, 617, 352 P.3d 796(2015).

The authority for a warrantless investigative detention is derived from Terry v.

Ohio, 392 U.S. 1. State v. Kennedy, 107 Wn.2d 1, 5-6, 726 P.2d 445 (1986). A

Terry stop is justified if an officer has a reasonable suspicion that the person

stopped has been or is about to be involved in a crime. State v. Acrey, 148

Wn.2d 738, 747,64 P.3d 594 (2003). Under article!, section 7 of the

Washington Constitution, the facts available to an officer at the time of an


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

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No. 76511-6-1/7


investigative detention must also connect the suspect to the particular crime that

the officer is investigating. Z.U.E., 183 Wn.2d at 618.

       The reasonableness of an officer's suspicion is determined by the totality

of the circumstances known to the officer at the inception of the stop. State v.

Lee, 147 Wn. App. 912, 917, 199 P.3d 445 (2008). This determination takes into

account an officer's training and experience and "commonsense judgments and

inferences about human behavior." Lee, 147 Wn. App. at 917 (quoting Illinois v.

Wardlow, 528 U.S. 119, 125, 120 S. Ct. 673, 145 L. Ed. 2d 570(2000)).

"[C]ircumstances which may appear innocuous to the average person may

appear incriminating to a police officer in light of past experience. The officer is

not required to ignore that experience." Samsel, 39 Wn. App. at 570-71; accord

United States v. Cortez, 449 U.S. 411, 418, 101 S. Ct. 690, 66 L. Ed. 2d 621

(1981). Pursuant to both the Fourth Amendment to the United States

Constitution and article 1, section 7 of the Washington Constitution, reasonable

suspicion may justify a detention even when a suspect is subsequently found to

be innocent of any misconduct.

               It is well established that, "[i]n allowing [investigative]
       detentions, Terry accepts the risk that officers may stop innocent
       people." Wardlow, 528 U.S. at 126. However, despite this risk,
       "[t]he courts have repeatedly encouraged law enforcement officers
       to investigate suspicious situations." State v. Mercer, 45 Wn. App.
       769, 775, 727 P.2d 676 (1986).

Lee, 147 Wn. App. at 918(some alterations in original). Thus, when an

individual's activity is consistent with criminal activity, even if it might also be

consistent with noncriminal activity, a detention may be justified. Kennedy, 107

Wn.2d at 6; accord United States v. Arvizu, 534 U.S. 266, 274, 122 S. Ct. 744,

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No. 76511-6-1/8


151 L. Ed. 2d 740(2002). We have previously rejected the notion that

incriminating police observations must be analyzed individually and severed from

their context as being inconsistent with the totality of the circumstances analytical

mandate. State v. Marcum, 149 Wn. App. 894, 907, 205 P.3d 969(2009)(citing

Arvizu, 534 U.S. at 274).

        Our Supreme Court recently reiterated that the proper standard for

determining whether police suspicion resulting from an informant's tip is

sufficiently reasonable to support a Terry stop is the totality of the circumstances

test. Z.U.E., 183 Wn.2d at 624. This test is distinct from the two-part reliability

inquiry derived from Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d

723(1964), and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed.

2d 637(1969), that is used to make determinations of probable cause for

purposes of obtaining a search warrant.2 Z.U.E., 183 Wn.2d at 624. Under a

totality of the circumstances analysis, an informant's tip supports reasonable

suspicion sufficient to justify an investigatory detention if it, in the context of all

the available facts, "possesses sufficient indicia of reliability." State v. Sieler, 95

Wn.2d 43,47,621 P.2d 1272(1980)(quoting Adams v. Williams, 407 U.S. 143,

147, 92S. Ct. 1921, 32 L. Ed. 2d 612(1972)).




          2 The source's veracity and the basis of the informant's knowledge, the two "prongs" of
the Aguilar-Spinelli test, are not treated as necessary elements that must be established under a
"totality of the circumstances" inquiry. Z.U.E., 183 Wn.2d at 620. Bell appears to rely on the
Aguilar-Spinelli two-prong test to assert that a source's veracity must be independently proven,
even in a totality of the circumstances analysis. Her contention is based upon a misconstruction
of the Supreme Court's holding in Z.U.E., which eschewed Aguilar-Spinelli's two-prong test in
favor of the totality of the circumstances inquiry as applied in Lee and Marcum. Z.U.E., 183
Wn.2d at 620-21.

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No. 76511-6-1/9


       We determine whether an informant's tip possesses the required "indicia

of reliability" by inquiring whether there exist(1) circumstances establishing the

informant's reliability, or(2)some corroborative observation, usually by the

officers, that shows either (a) the presence of criminal activity or (b)that the

informer's information was obtained in a reliable fashion. Z.U.E., 183 Wn.2d at

618 (citing Sieler, 95 Wn.2d at 47; State v. Lesnick, 84 Wn.2d 940, 944, 530 P.2d

243(1975)). "These corroborative observations do not need to be of particularly

blatant criminal activity, but they must corroborate more than just innocuous

facts." Z.U.E., 183 Wn.2d at 618.

       The danger presented to the public by the crime alleged is also part of the

totality of the circumstances analysis. Courts have recognized that ongoing

emergencies support broader law enforcement discretion than does suspicion of

unlawful, but not imminently dangerous, activities. "An officer may do far more if

the suspected misconduct endangers life or personal safety than if it does not."

State v. McCord, 19 Wn. App. 250, 253, 576 P.2d 892(1978). "[T]he

seriousness of the criminal activity reported by an informant can affect the

reasonableness calculus which determines whether an investigatory detention is

permissible." Sieler, 95 Wn.2d at 50 (citing Lesnick, 84 Wn.2d at 944-45).

       Accordingly,"when a tip involves a serious crime or potential danger, less

reliability may be required for a stop than is required in other circumstances."

Z.U.E., 183 Wn.2d at 623. Z.U.E. specifically recognized impaired driving as an

offense inviting such potential danger, based on the reasoning of Navarette v.

California, 572 U.S. 393, 134 S. Ct. 1683, 188 L. Ed. 2d 680 (2014). In


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No. 76511-6-1/10


Navarette, the informant was a 911 caller who reported that the suspect had run

her off the road with his vehicle. 572 U.S. at 395. In response, a police officer

followed the suspect's vehicle for several miles but did not observe any indication

of impaired driving. Nevertheless, the Court held that the special danger

presented by intoxicated drivers justified the suspect's investigative detention

"because allowing a drunk driver a second chance for dangerous conduct could

have disastrous consequences." Navarette, 572 U.S. at 404. Thus, the special

danger posed by an impaired driver on a public roadway may be a significant

factor in the totality of the circumstances informing an officer's reasonable,

articulable suspicion.

       The central issue herein is whether, under the totality of the

circumstances, the anonymous informant's tips possessed the necessary "indicia

of reliability" to justify Officer Leavengood's suspicion that Bell was driving under

the influence of intoxicants. In fact, Officer Leavengood received two tips: first,

information in the telephone call relayed through the Port of Seattle's police

dispatch, and second, the gesture toward Bell's car by a toll booth employee on

the scene. Bell avers that neither possessed the requisite indicia of reliability to

justify the officers' subsequent actions. Bell emphasizes that the officers did not

ascertain the identity of the individual who placed the call prior to making contact

with Bell, that the officers had no indication that the tip was based on an

eyewitness observation, and that no other details or facts supported the caller's

report of drunk driving.




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No. 76511-6-1/11


        Neither officer spoke directly with the informant who placed the telephone

call; as a matter of routine, both received the tip via the dispatcher. The record,

however, indicates that the officers knew from the dispatch that the caller was a

"toll plaza individual."3 In the immediacy of the situation, with the possibility of an

intoxicated driver about to enter a public highway, the police dispatcher conveyed

the necessary information given by the informant to the officers for their

response. Police are not required to distrust ordinary citizens who report crimes,

and "[c]ourts are not required to sever the relationships that citizens and local

police forces have forged to protect their communities from crime." Lee, 147

Wn. App. at 919 (alteration in original)(quoting United States v. Christmas, 222

F.3d 141, 145 (4th Cir. 2000)).

        Further, the observations relayed by the call implied that the informant

was, in fact, an eyewitness to Bell's driving, as the informant identified Bell's

gender and her car's Alaska license plates, while also communicating that Bell

was "attempting," impliedly without success, to exit the toll plaza even as other

traffic moved through the plaza normally.

        Bell does not contend that the second tip was not reliable. It is not

established in the record that the gesture was made by the same person who

placed the telephone call, but it is plain that the second tip was based on

eyewitness observation. Indeed, only two possibilities exist: either the toll booth

employee who gestured toward Bell's vehicle was the same person who made


        3 Bell contends that the first informant called the police on a non-emergency line, with the
implication that this rendered the informant less accountable than would a call to a 911 system.
However, her citation to the record does not support this assertion, nor does any evidence
elsewhere in the record indicate that a non-emergency line was used in lieu of 911.
No. 76511-6-1/12


the initial report or that employee was the second person to request police

attention to Bell's driving. In either circumstance, the credibility of the initial

report is enhanced.

       Importantly, the employee who gestured at Bell's vehicle was a person

known to the police—even if the officers did not know that person's name, the

person was present before them and (as an employee at the toll booth) was

easily identifiable. This also enhances the credibility of the report.

       In disputing the reliability of the informants, Bell overlooks the fact that an

informant's reliability need only be independently shown in the absence of a

corroborating observation. Z.U.E., 183 Wn.2d at 618-19. The informant's tips

herein did not lack corroboration. Officer Leavengood saw Bell's vehicle parked

outside any lane of a multi-lane roadway, and not in an area designated for

parking, while other vehicles were moving unimpeded through the toll plaza.

Then, Leavengood saw Bell move from the side of this roadway into a lane. Both

officers testified that there were between 12 and 15 lanes in the toll plaza, and

Officer Leavengood stated that Bell was parked on the edge "past lane 12 or 15"

and then moved into lane 8 or 9. Bell would have had to cross several lanes to

get to this position, and Officer Leavengood would have seen her perform this

maneuver. Based on his experience dealing with impaired drivers and his

knowledge that such drivers often experience difficulty respecting marked lanes

of traffic, the record shows that he had before him sufficient facts to corroborate

the tip. Under the totality of the circumstances, the informant's tips possessed

sufficient indicia of reliability to justify Leavengood's reliance thereon.


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No. 76511-6-1/13


       Bell lastly contends that her conduct presented no immediate danger to

the public because her vehicle was in a secure, gated area and the exit was

blocked by Officer Leavengood's patrol car. For several reasons, this in no way

eliminates the danger posed to the public. First, Bell moved her vehicle on to a

roadway with moving traffic. The other vehicles that the officers observed moving

through the plaza at that time were all endangered by the presence of an

impaired driver. Second, the toll plaza had between 12 and 15 lanes, and the

fact that one lane was blocked by a patrol car would not have precluded Bell from

using any of the other lanes to exit and access a more heavily trafficked public

highway. The record shows that the police were aware of motorists who had

driven directly through the toll gates and broken the swinging arms of the gates.

Thus, it cannot be said that her impaired driving posed significantly less danger

than is typical of other forms of the same offense.

       The officers who detained Bell acted lawfully. The trial court did not err in

denying the motion to suppress.

       Affirmed.




We concur:
                                                                  0.

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