Find Legal Information

Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,                          )           No. 65553-1-I
                                               )
                       Appellant,              )          DIVISION ONE
                                               )
                v.                             )
                                               )
 TIMOTHY P. GIDDENS,                           )          UNPUBLISHED
                                               )
                       Respondent.             )          FILED: June 4, 2012
                                               )
                                               )

       Cox, J.  --  A court acting in its appellate capacity may affirm a trial court's 

decision on any basis that is adequately supported by the record. In this case, 

the district court granted Giddens' suppression motion because the evidence 

was insufficient to establish reasonable articulable suspicion that a traffic 

violation occurred.  The court also ruled there was insufficient evidence to stop 

for investigation of DUI.  On RALJ review, the superior court affirmed the district 

court's ruling on an alternative basis:  that the traffic stop was pretextual.  

Because the superior court's alternative basis for suppression is not factually 

supported by the record, we reverse.  The effect is to leave standing the district 

court's decision granting the suppression motion on the basis argued and  

No. 65553-1-I/2

dismissing the case without prejudice.  

       At approximately 3:00 a.m. on July 2, 2008, Washington State Patrol 

Trooper Rocky Oliphant was on his way home at the end of his shift.  The 

vehicle in front of him drifted over the fog line twice within the distance of one 

block.  The trooper turned on his emergency lights, and the vehicle driven by 

Timothy Giddens pulled over.  Upon approaching Giddens, the trooper observed 

obvious signs of his intoxication.  Giddens performed poorly on field sobriety 

tests, and the trooper arrested him for driving under the influence (DUI).  Later 

breath tests revealed Giddens' alcohol level to be .137 and .127. 

       Pretrial, Giddens moved to suppress the evidence, arguing that the 

trooper lacked a reasonable articulable suspicion to stop his vehicle to 

investigate a traffic infraction.  The district court heard testimony and argument 

on the issue.  During his testimony, Trooper Oliphant described the events

leading to the arrest.  He was not asked about his motivation for the traffic stop.  

He did not testify whether he stopped Giddens' vehicle solely to investigate a 

traffic infraction based on the incursions over the fog line, or whether he 

suspected that the driver was intoxicated before he stopped the vehicle.  

       Giddens argued that crossing the fog line, as described by Trooper 

Oliphant, did not violate RCW 46.61.140(1) ("Driving on roadways laned for 

traffic.").  The statute provides that a "vehicle shall be driven as nearly as 

practicable entirely within a single lane and shall not be moved from such lane 

                                           2 

No. 65553-1-I/3

until the driver has first ascertained that such movement can be made with 
safety." Giddens relied on State v. Prado.1  In Prado, the driver crossed a lane 

line dividing an exit lane from an adjacent lane for one second by two tire widths.  

This court held that the legislature's use of the language "as nearly as 

practicable" demonstrated a recognition that "brief incursions over the lane lines" 
will occur and concluded that the evidence did not justify the traffic stop.2  

Giddens argued that the facts here were not meaningfully distinguishable from 

those in Prado, and accordingly, the stop was unlawful.

       The district court agreed and granted the motion.  As in Prado, the court 

found that the evidence did not establish that Giddens violated RCW 

46.61.140(1).  The court explained that it could not determine if a violation 

occurred because, for example, the testimony did not reveal how far or for what 

duration the car drifted over the fog line, or whether the driver's movements were 

otherwise erratic or created a safety hazard.  The court also concluded that the 

trooper did not have a valid basis to stop Giddens' vehicle to investigate a 

potential DUI. Because the practical effect of this ruling prevented the State from 

prosecuting the charge, the court dismissed without prejudice the DUI charge.  

       The State moved for reconsideration, arguing that the trooper had 

reasonable articulable suspicion to stop Giddens' vehicle for a traffic violation 

       1 145 Wn. App. 646, 186 P.3d 1186 (2008).

       2 Id. at 649.

                                           3 

No. 65553-1-I/4

under a different statute, RCW 46.61.670 ("Driving with wheels off roadway.").  

This provision states that it is "unlawful to operate or drive any vehicle  ...  over or 

along any pavement or gravel or crushed rock surface on a public highway with 

one wheel or all of the wheels off the roadway. . . ."  The State took the position 

that while RCW 46.61.140(1) governs when a vehicle crosses into an adjacent 

lane, incursions onto the shoulder fall under RCW 46.61.670.  The State also 

pointed out that RCW 46.61.670 does not contain the "as nearly as practicable" 

language of RCW 46.61.140(1).  Exercising its discretion, the district court 

denied the motion.

       The State appealed.  On RALJ review, the State declined to challenge the 

district court's conclusion that that there was no justification to stop the vehicle 

either to investigate a lane travel violation under RCW 46.61.140(1) or to 

investigate a possible DUI violation.  The State's sole argument was that the 

district court erred in concluding that the facts did not give rise to reasonable 

articulable suspicion to stop the vehicle to investigate violation of RCW 

46.61.670.

       Following a hearing, the superior court concluded:  

       [G]iven the circumstances, the officer, in fact, stopped the vehicle 
       on the basis that he suspected the defendant was driving under the 
       influence of some substance.  The claim that the officer intended to 
       stop the vehicle for observed lane travel violations was a pretext 
       for the officer's intent to engage in a further DUI investigation. As 
       a result, the lower court's decision is affirmed.[3]  

The court further concluded:   

                                           4 

No. 65553-1-I/5

       [A]ny claim that the stop initiated by the Trooper [was] due to his 
       belief in an observed violation of RCW 46.61.670 -- the "Driving 
       with Wheels off the Roadway" statute is not supported by the 
       record. While the officer testified he stopped the vehicle once he 
       had observed it cross the fog-line two times, no mention was made 
       of Driving with Wheels off the Roadway.  The State did not argue 
       defendant's driving was in violation of 46.61.670 prior to the lower 
       court's ruling either. The only argument for the stop was crossing 
       the fog line (46.61.140). The first mention made of 46.61.670 was 
       in the State's Motion to Reconsider days later.  The later 
       appearance of this statute further buttresses this court's finding 
       that the Trooper did not, in fact, stop the defendant for a lane travel 
       or edge of roadway violation, but for suspicion of DUI.[4]    

       The State sought discretionary review on three issues.  First, whether the 

superior court exceeded the proper scope of RALJ review in the course of ruling 

that the officer performed a pretextual stop.  Second, if the answer to the 

foregoing question is in the negative, did the superior court err in concluding that 

the officer performed a pretextual stop  Third, whether the superior court erred 

in declining to rule on the issue of whether RCW 46.61.670 provided a valid 

basis for the traffic stop.  We granted review of the first two issues, but denied 

review of the third issue.  

       The only briefing before us is from the State.  Giddens, whose 

whereabouts are unknown, is not represented by counsel in this appeal.

                             Scope of Appellate Review

       3 Clerk's Papers at 5.

       4 Id. at 6.  

                                           5 

No. 65553-1-I/6

       RALJ 9.1 prescribes the scope of appellate review by a superior court of a 
decision of a district court.5 Under RALJ 9.1(a), the superior court reviews the 

lower court ruling to determine if there are any errors of law.  In the course of its 

review, the superior court "shall accept those factual determinations supported 

by substantial evidence in the record (1) which were expressly made by the 

court of limited jurisdiction, or (2) that may reasonably be inferred from the 
judgment of the court of limited jurisdiction."6  The superior court does not 

consider the evidence de novo.7 These standards likewise apply to appellate 

courts that grant discretionary review of a superior court's RALJ decision.8

       It is well established that a court acting in an appellate capacity may 

properly affirm a trial court judgment on any basis established by the pleadings 

and supported by the record, whether or not the trial court relied on that basis in 
reaching its decision.9  

       An officer may not use a traffic infraction as a pretext to stop a citizen and 

       5 State v. Ford, 110 Wn.2d 827, 829 -- 30, 755 P.2d 806 (1988); State v. 
Brokman, 84 Wn. App. 848, 850, 930 P.2d 354 (1997).

       6 RALJ 9.1(b).

       7 State v. Basson, 105 Wn.2d 314, 317, 714 P.2d 1188 (1986).

       8 Ford, 110 Wn.2d at 829.

       9 In re Marriage of Rideout, 150 Wn.2d 337, 358, 77 P.3d 1174 (2003) (quoting 
Truck Ins. Exch. v. Vanport Homes, Inc., 147 Wn.2d 751, 766, 58 P.3d 276 (2002));  
Backlund v. Univ. of Wash., 137 Wn.2d 651, 670, 975 P.2d 950 (1999); Amy v. Kmart 
of Wash. LLC, 153 Wn. App. 846, 868, 223 P.3d 1247 (2009).

                                           6 

No. 65553-1-I/7

search for evidence of criminal wrongdoing that is unrelated to the reason for the 
stop.1  In order to determine whether a law enforcement officer conducted a 

lawful traffic stop or an unlawful pretextual one, the court will consider the totality 

of the circumstances, including both the subjective intent of the officer and the 
objective reasonableness of the officer's behavior.11 In Ladson, the court 

specifically rejected a purely objective inquiry.12   These inquiries are inherently 

fact intensive.13     

       Here, the district court found there was insufficient evidence presented to 

establish either that crossing the fog line violated RCW 46.61.140(1) or that a 

DUI violation occurred.  Pretext was not raised or developed at trial.  The trooper 

did not testify about his subjective motivations regarding the stop, and the district 

court made no findings addressing the trooper's motivations.        

       To reach the conclusion of pretext, the superior court necessarily found

that Trooper Oliphant's subjective motivation for stopping Giddens was to 

investigate him for DUI.  But there simply is nothing in the trial record to support 

this determination, made for the first time by the superior court on review.  

Accordingly, the superior court's alternative basis for affirming the district court's 

       1 State v. Snapp, 2012 WL1134130 at *10 (April 5, 2012); State v. Ladson, 138 
Wn.2d 343, 357 -- 58, 979 P.2d 833 (1999).

       11 Id. at *10; Ladson 138 Wn.2d at 358-59.

       12 Ladson, 138 Wn.2d at 358-59.

       13 State v. Meckelson, 133 Wn. App. 431, 436, 135 P.3d 991 (2006).

                                           7 

No. 65553-1-I/8

decision is not supported by the record and cannot stand.  We reverse the 

decision of the superior court because it is founded on an improper basis.

       We leave undisturbed the district court's decision dismissing the DUI 

charge without prejudice, following its grant of the suppression motion. We 

granted discretionary review on the limited issue of whether the superior court 

exceeded the proper scope of RALJ review, which we have ruled that it did.  

Because of our answer to this question, we need not reach the second question:  

whether the court properly concluded that the stop was pretextual.  Given this 

posture of the case, the district court's ruling stands on the basis made.

        We reverse the decision of the superior court.  We leave standing the 

district court's decision granting the suppression motion on the basis argued and 

dismissing the case without prejudice.

WE CONCUR:

                                           8 

No. 65553-1-I/9

                                           9