                                                                           FILED 

                                                                         MAR OS, 2013 

                                                                 In the Office of the Clerk of Court 

                                                               W A State Court of Appeals, Division III 





         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


STAIE OF WASHINGTON,                          )         No.30237.:.7-III
                                              )
                     Respondent,              )
                                              )
              v.                              )
                                              )
TONY ORLANDO CANTU,                           )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       BROWN, J. - Tony Orlando Cantu appeals his methamphetamine possession

conviction, contending the trial court erred in rejecting his pretext-arrest argument and

denying his evidence suppression motion. We affirm.

                                          FACTS

       The unchallenged suppression hearing findings of fact summarized here are

verities on appeal. About 1:00 a.m. on October 7,2010, Sheriffs Deputy Jason Erickson

was driving his patrol vehicle along a residential street in Othello, Washington when he

saw another vehicle, driven by Mr. Cantu, approaching him in the opposite lane at a rate

well above the 25-mile-per-hour speed limit. Using his radar speed-measuring device,

Deputy Erickson noted the vehicle traveled at 64 miles per hour initially, accelerated to

72 miles per hour, then decelerated to 62 miles per hour and nearly lost control after its
No. 30237-7-111
State v. Cantu

suspension bottomed out on a depression in the pavement. The street had parked vehicles

lining each side, crosswalks marked for pedestrian use, and intersections on which semi

trucks passed.

       The deputy stopped the vehicle and contacted Mr. Cantu in the driver's seat,

recognizing him from prior burglary, theft, and drug investigations. Deputy Erickson

explained he stopped Mr. Cantu for speeding at up to 72 miles per hour, indicating the

matter was serious because it was almost three times the speed limit. Mr. Cantu provided

his licensing and registration information upon Deputy Erickson's request. During this

exchange, Deputy Erickson saw large electronic equipment and bags in the rear seat,

which "piqued [his] curiosity." Report of Proceedings (RP) at 56.

       Deputy Erickson checked Mr. Cantu's status in law enforcement records and

found no current driving suspensions or outstanding arrest warrants. He called the local

jail and determined it had vacancy. Deputy Erickson then decided to arrest Mr. Cantu for

reckless driving based on his concern for the safety of persons and property in the area.

He searched Mr. Cantu's person incident to the arrest, discovering methamphetamine and

a digital scale. He then impounded Mr. Cantu's vehicle but did not search it.

       The State charged Mr. Cantu with possessing methamphetamine and using drug

paraphernalia. He moved unsuccessfully to suppress the methamphetamine and digital

scale, arguing Deputy Erickson arrested him for reckless driving as a pretext to search his

person and his vehicle for evidence of unrelated crimes. Mr. Cantu initially pleaded


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State v. Cantu

guilty to using drug paraphernalia, but he later withdrew his plea, and the trial court

dismissed the charge. A jury found Mr. Cantu guilty of possessing methamphetamine.

Mr. Cantu appealed.

                                        ANALYSIS

       The issue is whether the trial court erred in rejecting Mr. Cantu's pretext-arrest

argument and denying his suppression motion. Mr. Cantu contends his reckless driving

arrest was pretextual because Deputy Erickson arrested him with the subjective intent to

search his person and vehicle for evidence of unrelated crimes consistent with his

criminal history. We disagree with Mr. Cantu.

       We review challenged suppression hearing findings of fact for substantial

evidence and conclusions of law de novo to determine whether the findings support the

conclusions. State v. Garvin, 166 Wn.2d 242, 249,207 P.3d 1266 (2009). Mr. Cantu

does not challenge the trial court's factual findings, so they are "verities on appeal."

State v. Gaines, 154 Wn.2d 711, 716, 116 P.3d 993 (2005). Mr. Cantu instead challenges

the trial court's legal conclusions, which, because they were "entered ... following a

suppression hearing[,] carry great significance for a reviewing court." State v. Collins,

121 Wn.2d 168, 174,847 P.2d 919 (1993).

       The Washington State Constitution, article I, section 7, prohibits law enforcement

from stopping or arresting a suspect "as a pretext to search for evidence." State v.

Michaels, 60 Wn.2d 638,644,374 P.2d 989 (1962); see State v. Ladson, 138 Wn.2d 343,


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No.30237-7-III
State v. Cantu

357-58,979 P.2d 833 (1999). Thus, law enforcement "may enforce the traffic code, so

long as they do not use the authority to do so as a pretext to conduct an unrelated criminal

investigation." Statev. Snapp, 174 Wn.2d 177, 199,275 P.3d289 (2012). Whethera

stop or arrest is pretextual depends on the "totality of the circumstances," including the

acting officer's "subjective intent" and the "objective reasonableness" of his or her

behavior. Ladson, 138 Wn.2d at 358-59. Thus, the acting officer must have been

"actually motivated," "both subjectively and objectively," by the need to address the

traffic offense, not a desire to search. State v. Montes-Malindas, 144 Wn. App. 254,260,

182 P.3d 999 (2008); see Snapp, 174 Wn.2d at 199.

       Deputy Erickson testified he decided to arrest Mr. Cantu for reckless driving based

on his subjective concern for the safety of persons and property in the area. Deputy

Erickson's decision was objectively reasonable because Mr. Cantu drove his vehicle

almost three times the speed limit and nearly lost control on a residential street with

parked vehicles lining each side, crosswalks marked for pedestrian use, and intersections

on which semi trucks passed. While Deputy Erickson stated the large electronic

equipment and bags in the rear seat "piqued [his] curiosity," especially because he

recognized Mr. Cantu from prior burglary, theft, and drug investigations, RP at 56, he

never acted on this curiosity and no evidence suggests it motivated him to arrest Mr.

Cantu for reckless driving. Rather, the totality of the circumstances shows that in

arresting Mr. Cantu for reckless driving, Deputy Erickson was actually motivated, both


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No. 30237-7-111
State v. Cantu

subjectively and objectively, by the need to address the traffic offense, not a desire to

search.

          Mr. Cantu's argument relies on Montes-Malindas, 144 Wn. App. 254. The case

involved a classic pretextual traffic stop where an officer saw vehicle occupants act

suspiciously in a parking lot~ waited until they drove off, and stopped the vehicle when

the driver belatedly activated the headlights. ld. at 256-58. The officer did not cite the

driver for his traffic infraction. While the officer claimed he was motivated by the

driver's traffic infraction, he admitted his suspicion regarding the occupants' activity in

the parking lot was probably on his mind during the encounter. ld. at 261. This division

held the traffic stop was pretextual, reasoning the totality of the circumstances showed

the officer was actually motivated, subjectively and objectively, by a desire to surveil the

occupants regarding suspected crimes unrelated to the driver's traffic infraction. ld. at

261-62.

          Our facts are not like those in Montes-Malindas. Deputy Erickson's curiosity over

items in the rear seat came after the reckless driving stop and was unrelated to his arrest.

The search of Mr. Cantu's person was incident to his arrest. Thus, Montes-Malindas

does not apply. Considering all, the trial court did not err in rejecting Mr. Cantu's

pretext-arrest argument and denying his suppression motion.




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No.30237-7-III
State v. Cantu

      Affirmed.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.


                                                       Brown, J.

WE CONCUR:




Sid~~ a~                                                    ~.~
                                                       Kulik, J.
                                                                          J   I'




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