7 NICS App. 83, TULALIP TRIBES v. JOHNNY (May 2006)




The Tulalip Tribes, Plaintiff/Appellant,


Merle K. Johnny, Defendant/Cross-Appellant.

No. TUL-Cr-DO-2004-0369 (May 3, 2006)


Trial court suppressed evidence of drug violations seized following a traffic stop for a cracked windshield and certified issue for appeal. Court of Appeals holds that while the initial stop was lawful, the detention of the driver for a period longer than what was necessary to issue a citation for the cracked windshield without a particularized suspicion that another offense was committed rendered the extended detention unlawful, and evidence seized as a result of the unlawful detention must be suppressed. Trial court affirmed.


Jane M. Smith, Chief Justice; Edythe Chenois, Justice; Daniel A. Raas, Justice.


Raas, J.:

The Tulalip Tribe appeals from the suppression of evidence seized from the defendant during a roadside stop. We affirm.


This discussion incorporates and relies upon facts found by the trial court. The Tulalip Tribe advanced different facts in its briefing. However, we hold that a party challenging Findings of Fact entered by the trial court must clearly identify the Findings of Fact with which it disagrees and provide specific citations to the record in order properly to present such a challenge.1 This the Tulalip Tribe has not done.

7 NICS App. 83, TULALIP TRIBES v. JOHNNY (May 2006) p. 84

Defendant Merle K. Johnny was stopped on the afternoon of August 11, 2004, on the Tulalip Reservation by Snohomish County Deputy Sheriff Sanders for driving with a cracked windshield. Deputy Sanders requested and received defendant’s Washington drivers license. The defendant volunteered that his license was suspended, he had no insurance and that the car he was driving was not his. Deputy Sanders took his drivers license, returned to his patrol vehicle, verified that the car was registered to a woman and that it was not reported stolen.

The deputy put on latex gloves and returned to defendant’s car. He asked the defendant to step from the car, which he did. Mr. Johnny was nervous and fidgety. Deputy Sanders asked defendant to give him permission to search the car, which Mr. Johnny refused. For approximately the next ten minutes, the deputy aggressively asked for permission to search the car, and Mr. Johnny continued to deny such permission.

In one of those fortuitous happenstances that occasionally occur, Tulalip Chief of Police Goss then drove up. After a short conversation with Deputy Sanders, Chief Goss approached Mr. Johnny and asked if the reason that he would not allow a search of the car was that drugs were in the car. Mr. Johnny replied it was, and reached inside and handed Chief Goss a McDonald’s Restaurant bag containing scales and at least two baggies of marijuana. Chief Goss arrested Mr. Johnny and charged him with a drug offense.

Deputy Sanders never checked the status of defendant’s license, wrote a citation for the cracked windshield, or impounded the car.

The Trial Court suppressed the seized drugs and drug paraphernalia. The Tulalip Tribe appealed.


The activity at the side of the road has two distinct phases. The first begins with the observation of the cracked windshield and continues through the initial questioning of the defendant regarding his license and the ownership of the car, through Deputy Sanders’ return to the patrol car, and ends with the check on the status of the vehicle Mr. Johnny was driving. The second begins when Deputy Sanders dons the latex gloves and ends with the defendant’s arrest by Chief Goss. Putting on the gloves is a sign that the deputy had decided to search the car. To conduct such a search requires probable cause. We conclude that the decision to search the car was without probable cause, and that therefore the fruits of the search must be suppressed.

The initial stop was valid. Driving with an obstructed windshield is an infraction under Tulalip law. Tulalip Tribal Ordinance 49, Section 3.3.1 incorporates RCW 46.37, which, in RCW 46.37.410(2), prohibits driving a motor vehicle with any nontransparent material on the front windshield. A cracked windshield is an infraction under Tulalip law, and stopping the offending vehicle and its driver is appropriate.

7 NICS App. 83, TULALIP TRIBES v. JOHNNY (May 2006) p. 85

So was the initial investigation of the infraction, where Deputy Sanders sought information regarding Mr. Johnny’s license status, car ownership, and insurance status. The difficulty with the stop arises when Deputy Sanders determined that a search of the car was needed.

Tulalip Tribal Code, Ordinance 49, §2.2.5, requires that a search may be made, and contraband seized when a search is made, either with a search warrant or “in accordance with federally judicially recognized exceptions to the warrant requirement.” § TTC, Ordinance 49, §2.2.14 permits investigative stops of persons or vehicles “in circumstances that create a particularized suspicion that the person or occupant has committed ... an offense.” And TTC, Ordinance 49, §2.2.17 provides that the duration of a stop under §2.2.14 “may not last longer than is necessary to effectuate the purpose of the stop.”

Here, Deputy Sanders had all the information he needed to complete the investigation of the cracked windshield when he took the defendant’s drivers license back to his patrol car.

But the Deputy did not stop there. He retained the defendant’s license and spent ten minutes seeking permission to search the car. In order to search the vehicle, Deputy Sanders required a “particularized suspicion” that an offense had been committed. Ordinance 49 §2.2.14. The only objective evidence the Deputy cited as raising his suspicions was that the defendant was nervous and fidgety.

Every search or seizure must be reasonable. Indianapolis v. Edmonds, 431 U.S. 32 (2000), 25 U.S.C. §1302(2). Even a detainee’s “extreme nervousness” during a traffic stop, without more, does not justify further detention or an expansion of an otherwise justified stop. United States v. Chavez-Valenzuela, 268 F.3d 719, 726 (9th Cir. 2001). Deputy Sanders was not justified in holding the defendant in order to search his car, nor was Chief Goss justified in continuing the inquiry. Without the particularized suspicion required by §2.2.14, the continued detention was unlawful. Without a lawful stop, the contraband recovered from defendant must be suppressed.

Other tribal courts have reached similar conclusions. Fort Peck v. Vondall, No. 310 (Fort Peck, 07/29/1999) (Objective evidence which would support a reasonable suspicion that criminal activity had taken place needed to justify investigatory stop), Maho v. Hopi Tribe, 96-AC-00001 (1997) (warrantless search must be based on reasonable or probable cause), Navajo Tribe v. Todecheene, 1 Nav. R. 67 (Navajo 09/18/1973) (warrantless search of automobile incident to arrest is limited to instrumentalities of crime for which individual was arrested, weapons, or means of escape).

7 NICS App. 83, TULALIP TRIBES v. JOHNNY (May 2006) p. 86

The Trial Court is affirmed.2


The syllabus is not a part of the Court's Opinion. The syllabus is a summary of the Opinion prepared by the publishers of this Reporter only for the convenience of the reader. Therefore, the syllabus should not be cited in whole or part as legal authority. Only the Opinion, which follows the syllabus, may be cited as legal authority.


We do not express an opinion on the standard governing a challenge to Findings of Fact found by a Trial Court.


Defendant Johnny cross appealed the issue of the failure to give him ‘Miranda warnings’ prior to the search if we find that the detention was valid. Because we find the detention of the defendant for the purpose of searching the vehicle was improper, we do not reach the cross-appeal, and express no opinion that issue.