State v. Mecham

¶1 ¶61 (concurring in part and dissenting in part) — I agree with the lead opinion that field sobriety tests (FSTs) as they are normally used—either (1) following a traffic stop based on evidence of impaired driving or (2) following a stop for an unrelated offense where the officer immediately discovers signs of impairment but the suspect is not yet under arrest—are seizures that may be justified under Terry.14However, the manner in which Officer Scott Campbell utilized the FSTs in the present case exceeded the constraints imposed by Terry and our interpretation of Terry, and amounted to a search for evidence that required a warrant or a warrant exception. This being so, Mark Tracy Mecham had a constitutional right to refuse to submit to the FSTs, and the State should have been precluded from offering evidence of the refusal against him at trial.

¶2¶62 Under Terry, a law enforcement officer may briefly detain a suspect based on a reasonable suspicion that criminal activity is afoot. See State v. Duncan, 146 Wn.2d 166, 172, 43 P.3d 513 (2002) (“Terry requires a reasonable, articulable suspicion, based on specific, objective facts, that the person seized has committed or is about to commit a crime.” (emphasis omitted) (citing Terry, 392 U.S. at 21)). “[A] traffic stop is a ‘seizure’ for the purpose of constitutional analysis, no matter how brief.” State v. Ladson, 138 Wn.2d 343, 350, 979 P.2d 833 (1999) (citing Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979); Whren v. United States, 517 U.S. 806, 809-10, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996); City of Seattle v. Mesiani, *155110 Wn.2d 454, 460, 755 P.2d 775 (1988) (Dolliver, J., concurring)). We have extended Terry to traffic infractions “ ‘due to the law enforcement exigency created by the ready mobility of vehicles and governmental interests in ensuring safe travel, as evidenced in the broad regulation of most forms of transportation.’ ” State v. Day, 161 Wn.2d 889, 897, 168 P.3d 1265 (2007) (quoting State v. Johnson, 128 Wn.2d 431, 454, 909 P.2d 293 (1996)). However, traffic stops under Terry are “permissible only if (1) ‘the officer’s action was justified at its inception,’ and (2) ‘it was reasonably related in scope to the circumstances which justified the interference in the first place.’ ” Ladson, 138 Wn.2d at 350 (quoting Terry, 392 U.S. at 20). A law enforcement officer may extend a Terry stop to continue investigating a potential crime if the officer’s suspicions are either confirmed or further aroused. See State v. Acrey, 148 Wn.2d 738, 747, 64 P.3d 594 (2003).

¶3¶63 I disagree with the lead opinion that under the facts of this case, the FSTs were merely a seizure. I arrive at this conclusion because the reasonable suspicion needed to justify an officer’s continued investigation under Terry must arise at the inception of the contact and the continued seizure must be tied to the justification underlying that initial contact. See Ladson, 138 Wn.2d at 350; Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983) (“The scope of the detention must be carefully tailored to its underlying justification.”).

¶4¶64 In the present case, the Terry stop was not “carefully tailored to its underlying justification” because justification for the initial seizure (the outstanding warrant) was wholly unrelated to the justification for the FSTs. More importantly, Officer Campbell did not discover the justification for the FSTs until after Mecham was already under formal arrest, a point the lead opinion acknowledges but does not address. See lead opinion at 131 (“Following arrest, Officer Campbell smelled intoxicants on Mecham’s breath and noticed that Mecham’s movements were sluggish and that *156his speech was slurred and repetitive.” (emphasis added)). Thus, the Terry analysis, if applicable at all, must begin anew at the time the officer formed his suspicion that Mecham was intoxicated. Even here, under normal circumstances, I believe there would be sufficient facts to justify an extension of the traffic stop under Terry. However, the situation presents a unique problem because Mecham was formally arrested for a different offense both when the officer formed his suspicion that Mecham was driving impaired as well as when the officer requested that Mecham perform the FSTs.

¶5¶65 We have been clear that “Terry does not authorize a search for evidence of a crime.” Day, 161 Wn.2d at 895. Therefore, while Terry could have been used to extend the traffic stop in order to confirm or dispel Officer Campbell’s suspicions after the traffic stop but prior to arrest, Terry is simply inapplicable following arrest. I can find no authority that justifies expanding Terry from a “ ‘brief investigative detention’ ” to a doctrine that permits law enforcement to redetain someone who has already been arrested for an unrelated offense. Lead opinion at 152 (quoting Suppl. Br. of Pet’r at 19). Officer Campbell’s sole purpose in seeking to compel Mecham to perform FSTs, postarrest, was to gather evidence of Mecham’s guilt for driving under the influence. This being so, under both the Fourth Amendment to the United States Constitution and article I, section 7 to the Washington Constitution Officer Campbell needed a warrant, or an exception to the warrant requirement, in order to compel Mecham to perform the FSTs. See Ladson, 138 Wn.2d at 347-51. Because Officer Campbell had neither, Mecham had a constitutional right to refuse the search for evidence and the State should have been precluded from introducing evidence of the refusal at trial.

¶6¶66 Terry operates as one of only a few “ ‘jealously and carefully drawn’ ” exceptions to the warrant requirement. See id. at 349 (internal quotation marks omitted) (quoting State v. Houser, 95 Wn.2d 143, 149, 622 P.2d 1218 (1980)). *157Although I agree with the lead opinion that under different circumstances FSTs constitute only a seizure, we should refrain from expanding the brief investigative Terry stop to cover individuals already under formal arrest for unrelated offenses.

¶7¶67 Accordingly, I concur in part and dissent in part.

¶9¶68 (dissenting) — The lead opinion overcomplicates and confuses the issue this case presents. In doing so, the lead opinion loses track of the fundamental nature of what this case concerns—that is, a citizen’s right to choose to do something or not. The officer here requested that the defendant perform specific voluntary actions, which the defendant chose not to do. For the principles of voluntariness or consent to have any meaning, the only conclusion flowing from this choice is simply that—a choice was made. No evidentiary relevance should flow from this choice. The conviction should be reversed and the case remanded for a new trial.15

¶10¶69 The lead opinion goes off track by relying mostly, if not exclusively, on cases challenging the admissibility of evidence of field sobriety tests (FSTs) where the tests were performed and the results were admitted as substantive evidence of guilt. The evidence was challenged on appeal. The essence of the reasoning of these cases is that, since the tests are voluntary, when a person consents to performing the tests, he or she is bound to that choice, good or bad. Moreover, no logical or legal sense exists for those cases to even analyze consent and uphold the admissibility of evidence at trial outside the context of a “search.” Those cases have little, if any, relevance here except the recognition that a person possesses the right to choose and that when valid consent to a search exists, the results are admissible.

¶11*158¶70 Underscoring the consensual nature of this request is, unlike the statutory requirement established under our implied consent statutes and laws here, where an officer asks a person to perform the FSTs, no warnings, statutory or otherwise, are required advising the person of the consequences of refusal. Perhaps the statute could be revised to include FSTs and consequences of refusal, but the legislature has not acted to do so. That should logically mean that a person retains the fundamental right to choose.16

¶12¶71 Remarkably, and without citing any relevant case authority, the lead opinion concludes this evidence is admissible to establish consciousness of guilt,17 which is what was argued by the State at trial. The lead opinion cites State v. Nordlund, 113 Wn. App. 171, 188, 53 P.3d 520 (2002), for this principle. But Nordlund involved a defendant’s refusal to supply hair samples required by a valid court order.

¶13¶72 What the lead opinion fails to acknowledge is that implicit in Nordlund, absent the authority of the court order, a person retains the right to choose to refuse. This principle was correctly recognized and analyzed by the court in State v. Gauthier, 174 Wn. App. 257, 298 P.3d 126 (2013), where the court reversed a conviction in which the prosecutor had improperly used at trial evidence that the defendant had refused consent to a warrantless search of his DNA (deoxyribonucleic acid). The exercise of the right to choose is not consciousness of guilt—the only consciousness *159the cases establish is a person made the conscious decision to choose.

¶14¶73 Finally, the lead opinion erroneously reasons that the defendant’s interests emanate from the common law, not constitutional principles, and are therefore not protected from comment or use against the defendant at trial. This conclusion, which seems to be at the core of the lead opinion’s analysis, makes no sense from an overall constitutional perspective. It should make no difference whether a principle is recognized as a privacy interest under article I, section 7 of the Washington Constitution;18 a right of an accused under article I, section 9,19 or more generally under article I, section 30 or article I, section 32;20 or elsewhere under the common law, the principles and protections remain.

¶15¶74 Especially important to cases like this one are facts such as that Mark Mecham was already under arrest and the officer was not engaging in a casual conversation concerning sports or the weather but was asking Mecham to voluntarily perform “tests” specifically designed and intended to elicit incriminating evidence. Under these circumstances, the choice in exercising the right to refuse consent should be recognized and protected. Fundamental principles of fairness arise where an officer misleads a person into making a choice only to result in the choice being used against them.

¶16¶75 The constitution and the rights and principles are not foreign or divorced from the common law, as the lead opinion evidently believes. The constitution reflects and is founded on basic rights in existence at its adoption from the *160common law. The conviction should be reversed and the matter remanded for a new trial.