* State Of Washington, Respondent V. Donald Kinsell Jones, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
DONALD KINSELL JONES,
Appellant.
No. 70620-9-
DIVISION ONE
PUBLISHED OPINION
FILED: 	April 6, 2015
Leach, 	J. 	— 	Donald 	Kinsell 	Jones appeals his conviction for 	unlawful
possession of a firearm in the second degree. 	He claims that the trial court
should have suppressed evidence of his firearm possession as the fruit of an
unlawful traffic stop. 	He also challenges the sufficiency of the evidence to prove
one element of the charged crime, a predicate felony conviction. 	Because the
State's evidence at the suppression hearing failed to justify the traffic stop under
State v. Prado,1 we reverse and remand, without reaching any other issue.
FACTS
In the 	early 	morning 	hours 	of 	December 	16, 	2012, 	Anacortes 	Police
Officer Jacqueline Richter saw Donald Jones driving on State Route 20, within
145 Wn. App. 646, 186 P.3d 1186(2008).
 	 	 	 	 	 	 	 	 	 	 	 	 	

NO. 70620-9-1 / 2
the city limits of Anacortes, Washington. 	As she followed Jones in her patrol car
for 	about 	a 	mile, 	she 	observed 	Jones's 	vehicle 	"pass 	over 	the 	fog 	line
approximately an inch" three times, each time "correcting its position with a slow
drift." 	She stopped Jones and told him that she had stopped his vehicle "due to
erratic lane travel." 	There were no other vehicles on the roadway at the time.
Jones agreed to perform field sobriety tests, which did not indicate intoxication.
Officer Sam King arrived to assist Richter. 	King saw a rifle in the backseat
of Jones's truck. 	Jones consented to a vehicle search "for the sole purpose of
recovering the rifle." 	A records check revealed that Jones did not have a valid
driver's license. 	In the course of their conversation, Jones told King that he had
a felony conviction in Idaho for possession of a controlled substance.
The State charged Jones with one count of unlawful 	possession of a
firearm in the second degree.2 	Jones moved to suppress the fruits of the vehicle
search. 	Citing Prado, Jones challenged the lawfulness of the stop. 	Because the
State 	presented 	no 	evidence 	that 	Jones's 	three 	crossings 	of 	the 	fog 	line
imperiled any other traffic or Jones or that Officer Richter recognized his driving
as suggesting impairment, he claimed that the officer had no legal basis for the
stop. 	Concluding that "there were more clear lane violations than those noted in
RCW9.41.040(2)(a)(i).
 	 	 	 	 	 	 	 	 	 	 	 	 	

NO. 70620-9-1 / 3
the State v. Prado decision," the trial court denied Jones's motion. 	Jones waived
his right to a jury trial. The court found Jones guilty as charged.
Jones appeals.
STANDARD OF REVIEW
We review the denial of a motion to suppress by determining if substantial
evidence supports the trial court's findings of fact and if those findings support
the court's conclusions of law.3 	Evidence is 	substantial 	if it is 	sufficient to
persuade a fair-minded, rational person 	that the finding 	is true.4 	This court
reviews conclusions of law de novo.5
ANALYSIS
Jones contends that the police lacked legal justification to stop him. 	The
State contends that Officer Richter's observation of Jones's vehicle crossing the
fog line three times provided 	this justification. 	For purposes of constitutional
analysis, a traffic stop is a seizure.6 	The Fourth Amendment to the United States
Constitution 	guaranty 	against 	unreasonable 	searches 	and 	seizures 	requires
either a warrant or proof that the seizure qualifies under one of the few "'jealously
3 State v. Ross, 106 Wn. App. 876, 880, 26 P.3d 298 (2001).
4 State v. 	Reeder, 	181 	Wn. 	App. 	897, 	923-24, 	337 P.3d 	786, 	review
granted, 337 P.3d 325 (2014).
5 Ross, 106 Wn. App. at 880.
6 State v. Doughty, 170 Wn.2d 57, 62, 239 P.3d 573 (2010) (citing State v.
Ladson, 138 Wn.2d 343, 350, 979 P.2d 833 (1999)).
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NO. 70620-9-1/4
and carefully drawn'" exceptions to the warrant requirement.7 Article I, section 7
of the Washington Constitution protects "private affairs" even more broadly and
expressly requires legal authorization for any disturbance of those affairs.8 	The
State has the burden to show that a particular warrantless search or seizure fits a
recognized exception.9 	An officer may make a warrantless investigative stop
based on a reasonable, articulable suspicion of unlawful conduct by a driver.10
When reviewing the validity of an investigative stop, courts evaluate the totality of
the circumstances.11
The State relies on RCW 46.61.140(1), which describes safe lane travel:
Whenever any roadway has been divided into two or more clearly
marked lanes for traffic the following rules in addition to all others
consistent herewith shall apply:
(1) A vehicle shall be driven as nearly as practicable entirely
within a single lane and shall not be moved from such lane until the
driver has first ascertained that such movement can be made with
safety.
7 State v. Williams, 102 Wn.2d 733, 736, 689 P.2d 1065 (1984) (internal
quotation marks omitted) (quoting State v. Houser, 95 Wn.2d 143, 149, 622 P.2d
1218(1980)).
8 State v. Chacon Arreola, 176 Wn.2d 284, 292-94, 290 P.3d 983 (2012);
Wash. Const, art. I, § 7 ("No person shall be disturbed in his private affairs, or
his home invaded, without authority of law.").
9 Williams, 102 Wn.2d at 736 (citing Houser, 95 Wn.2d at 149).
10 Chacon Arreola, 176 Wn.2d at 292-93; Ladson, 138 Wn.2d at 349-50;
Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L Ed. 2d 889 (1968).
11 Doughty. 170 Wn.2d at 62.
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NO. 70620-9-1 / 5
We interpreted this statute, 	and 	particularly the 	phrase "as 	nearly as
practicable," for the first time in Prado. 	In that case, a police officer stopped a car
that had crossed a 	lane divider line in an exit lane by approximately two tire
widths for one second.12 	The State charged the driver with driving under the
influence of an intoxicant. 	The district court denied Prado's motion to suppress,
and Prado was convicted.13
On 	RALJ 	appeal, 	the 	superior 	court 	reversed, 	concluding 	that 	the
language "as nearly as practicable" required an analysis of the totality of the
circumstances, which did not justify a stop based on merely a "brief incursion
across the white lane line with 	no erratic driving or safety problems."14 	We
granted discretionary review and affirmed.15
Because Prado presented an issue of first impression in Washington, we
looked to the decisions of courts in states with similar statutory language and
found that they have consistently held that "minor incursions over a lane line" do
not, by themselves, constitute a sufficient basis for an investigatory stop.16 	We
agreed, concluding that Washington's statutory language "does not impose strict
12 Prado, 145 Wn. App. at 647.
13 Prado, 145 Wn. App. at 647.
14 Prado, 145 Wn. App. at 647-48.
15 Prado, 145 Wn. App. at 647-48.
16 Prado, 145 Wn. App. at 648; see State v. Livingston, 206 Ariz. 145, 148,
75 P.3d 1103 (Ct. App. 2003); State v. Cernv, 28 S.W.3d 796, 800-01 (Tex. App.
2000); State v. Gullett. 78 Ohio App. 3d 138, 144-45, 604 N.E.2d 176 (1992).
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NO. 70620-9-1 / 6
liability" and "[a] vehicle crossing over a lane once for one second by two tire
widths does not, without more, constitute a traffic violation justifying a stop by a
police officer."17
The State argues that the facts in Jones's case are "substantially different"
from Prado's—that while the "extreme brevity of the transgression" in Prado did
not justify a traffic stop, Jones's three incursions over the fog line "suggested to
[the officer] that the driver could be impaired. 	At that point she had a reasonable
suspicion of criminal activity."
But our Prado decision did not depend on the fact that the driver crossed
the lane line only once. 	Rather, we used a totality of the circumstances analysis
that included factors such as other traffic present and the danger posed to other
vehicles.18 	This represents a more sophisticated analysis than a simple tally of
the number of times a 	tire crossed a 	line. 	The out-of-state cases we found
persuasive included factual scenarios involving more than one incursion, which
courts 	still 	found 	insufficient 	to 	justify 	a 	stop 	under 	statutes 	similar 	to
Washington's.19 	We 	likewise 	held 	that "brief incursions"—not 	necessarily a
single incursion—"will happen" and do not violate the lane travel statute.20
17 Prado, 145 Wn. App. at 647.
18 Prado, 145 Wn. App. at 649.
19 Prado, 145 Wn. App. at 649; see Gullett. 78 Ohio App. 3d at 143-45
("two incidents of crossing the edge line" held 	not to justify traffic stop where
record showed no other traffic present and no speeding, erratic driving, or other
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NO. 70620-9-1 / 7
The State contends, "Officer Richter's stop of Mr. Jones' car was based on
Officer Richter's suspicion that Mr. Jones was engaged in criminal activity and
that suspicion was reasonable." 	The State relies on State v. McLean.21 	There, a
Washington state trooper stopped a driver after observing him cross the fog line
three times.22 	The arresting officer testified to his training and experience in
identifying 	impaired 	drivers 	and 	the 	inferences 	he 	drew 	from 	his 	personal
observations.23 	Division 	Two 	of this 	court 	concluded 	that 	because 	of "the
articulable fact of this observation" and the trooper's training and experience
identifying impaired drivers, 	"it was rational for [him] to infer that there was a
substantial 	possibility that 	McLean 	was 	driving 	under 	the 	influence," 	which
justified a warrantless stop.24
conduct to indicate driver was impaired); Cernv, 28 S.W.3d at 798-99, 801 ("no
evidence that [driver's] actions were unsafe" where driver "'just barely'" swerved
across center line and swerved "over" fog line "three or four times"; "evidence
does 	not support" 	reasonable 	belief that driver violated 	lane travel 	statute);
Livingston. 206 Ariz, at 148 (citing Rowe v. State, 363 Md. 424, 433-36, 769 A.2d
879 	(2001) 	(momentarily crossing 	the 	shoulder line twice not a 	violation of
Maryland statute requiring vehicle to stay within lane "'as nearly as practicable'"
(quoting Md. Code Ann. Transp. § 21-309(b)))); see also Crooks v. State, 710
So.2d 1041, 1042-43 (Fla. Dist. Ct. App. 1998) (no violation where driver crossed
edge line three times).
20 Prado, 145 Wn. App. at 649.
21 178 Wn. App. 236, 313 P.3d 1181 (2013), review denied, 179 Wn.2d
1026(2014).
22 McLean, 178 Wn. App. at 241.
23 McLean, 178 Wn. App. at 241-42.
24 McLean, 178 Wn. App. at 245.
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NO. 70620-9-1 / 8
But McLean does not support the State's position. 	In McLean, the trooper
saw the driver not only cross the fog line three times but also drive in the left lane
without passing,25 "weav[e] from side to side within the left lane," and discard a lit
cigarette after the trooper activated his emergency lights.26 	The trooper, who
testified 	about 	his 	training 	and 	experience 	in 	identifying 	impaired 	drivers,
estimated that in one year he 	had stopped about 400 drivers for lane travel
violations and made over 200 arrests for driving under the influence.27 	The trial
court found that the trooper stopped McLean based on a reasonable suspicion
that he was driving under the influence.28
Here, by contrast, the record does not support the State's contention that
Richter stopped Jones because of a "reasonable suspicion of criminal activity."
The State presented no evidence about Officer Richter's training and experience
in identifying impaired drivers. 	Officer Richter did not testify that she suspected
Jones 	was 	impaired 	or 	that 	she 	stopped 	him for 	this 	reason. 	The 	State
presented no evidence of dangerous driving or any other traffic infraction. 	The
25 See RCW 46.61.100(4) ("It is a traffic infraction to drive continuously in
the left lane of a multilane roadway when it impedes the flow of other traffic").
26 McLean, 178 Wn. App. at 241.
27 McLean, 178 Wn. App. at 240-41; see State v. Glover. 116 Wn.2d 509,
514, 806 P.2d 760 (1991) (totality of circumstances may include officer's training
and experience).
28 McLean, 178 Wn. App. at 243-44.
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NO. 70620-9-1 / 9
trial court did not find that Officer Richter stopped Jones because of a reasonable
suspicion that he was driving under the influence.
Instead, when defense counsel asked if the trial court found that Jones's
driving was unsafe, the court said no:
What I'm finding is that there were no other vehicles at the time to
be endangered. 	I suppose there's always a potential of unsafeness
to him or others if the weaving were to continue and go on, but I
want it clear he was not endangering anyone at the time the officer
observed nor up to the time he was pulled over.
The trial court here found only that "there were more clear lane violations than
those noted in the State v. Prado decision," which warranted a stop to investigate
"why there was unsafe lane travel." And while the court stated that "[d]ue to the
time of day, the time of year, driving is more potentially dangerous," it did not find
that the 	conditions or weather made 	Jones's driving 	unsafe. 	As 	in Prado.
Jones's driving did not violate RCW 46.61.140(1).29
Because the State failed to justify its warrantless seizure of Jones, the trial
court 	should 	have 	suppressed 	the 	evidence 	discovered 	because 	of 	that
seizure.30 	We reverse and remand. 	We need not reach Jones's sufficiency
claim.
29 Prado, 145 Wn. App. at 649.
30 Ladson. 138 Wn.2d at 359; State v. Larson. 93 Wn.2d 638, 645-46, 611
P.2d 771 (1980) (citing Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407,
9 L.Ed. 2d 441 (1963)).
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NO. 70620-9-1/10
CONCLUSION
Because 	the 	stop 	of 	Jones's 	vehicle 	was 	not 	lawful 	under 	RCW
46.61.040(1) and State v. Prado. the trial court erred by not suppressing the
evidence of the firearm. 	We reverse and remand.
WE CONCUR:
CO
CO
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