State Of Washington v. Debra L. Doering ( 2015 )

FILED
EALS
CQURTD IAPP I
01511 - 5 9: 28
STATE OF WASHINGTON
BY
TY
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 45766 -1 - II
Respondent,
v.
DEBRA L. DOERING, UNPUBLISHED OPINION
Appellant.
WoRSwICK, J. — Debra Doering appeals her conviction for one count of unlawful
possession of methamphetamine. She argues that the trial court erred by denying her motion to
suppress evidence because police officers unlawfully seized her twice, and that these illegal
seizures invalidated her eventual consent to the search of the vehicle. We find no error and
affirm.
FACTS
Two officers for the Washington Department of Fish and Wildlife stopped a car
trespassing at night on a private road. Thomas Tobey was driving the car, and Debra Doering
was a passenger. During this stop, the officers saw suspected methamphetamine and a pipe in
the vehicle. The officers obtained Doering' s and Tobey' s consent to search the vehicle, and
retrieved the methamphetamine and pipe. Doering acknowledged that the drugs were hers.
No. 45766 -1 - II
The State charged Doering with one count of unlawful possession of a controlled
substance ( methamphetamine). Doering moved to suppress the methamphetamine in a CrR 3. 6
hearing.
At the CrR 3. 6 hearing, Officer Smith testified to the following: he and Officer Jewett,
both officers for the Department of Fish and Wildlife, patrolled private logging roads owned by
Green Diamond Resource Company to help enforce nighttime closure of those roads to prevent
illegal hunting. The roads are closed during hours of darkness, and signs to this effect are posted
at all entrances to the roads. The officers stopped all vehicles driving on the roads during hours
of darkness. During floods, one of these private roads, Green Diamond 800 Road, may be used
as an evacuation route. When there is an evacuation in effect, it is legal to drive on Green
Diamond 800, even in darkness. On the night in question, March 16, 2013, the evacuation route
signs indicated that the evacuation route was open, although other signs still indicated that Green
Diamond 800 was closed during darkness. The Green Diamond road closure signs did not say
anything about evacuation routes. There was no flood on the night in question.
Officer Smith testified that the officers noticed a vehicle traveling on the road around
11: 00 PM, long after darkness. The officers stopped the vehicle, which Tobey was driving and in
which Doering was a passenger. The officers noticed " a bunch of tools and miscellaneous items
in the back of the vehicle." Verbatim Report of Proceedings ( VRP) at 6. These items included
sharp objects, hammers, and other kinds of tools that could be used as weapons. Officer Smith
testified that the officers stopped the vehicle because the occupants were trespassing on Green
Diamond roads during hours of darkness. The officers suspected Doering of trespassing based
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on the fact that Green Diamond closes all their roads to motor vehicle access at night and
because Doering was in the vehicle accessing Green Diamond' s property.
Officer Smith testified that after stopping the vehicle for trespassing, the officers ran
checks on both Tobey and Doering, and determined that Tobey' s license was suspended. The
checks also revealed that Doering had a valid license.' The officers arranged for Doering to
drive Tobey' s vehicle off the property.
The officers found a shotgun in the vehicle near Tobey. They seized it to make sure it
was unloaded, and removed Tobey from the vehicle to frisk him for other weapons.
Officer Smith saw Doering reach back into the vehicle' s back seat while the officers were
frisking Tobey. Officer Smith asked Doering to lean forward so he could see her hands, because
he was concerned Doering might pose a threat given that there were tools, sharp objects, and an
aggressive pit bull in the back seat. Then, Officer Smith came to the passenger side of the
vehicle, asked Doering to step out, and frisked her for weapons. He testified that he did this
because he wasn' t sure what she was reaching " back to the back of the vehicle" for, and because
typically there' s not just one weapon when I run into people in the woods. VRP at 8. Officer
Smith testified that he believed Doering might be armed and dangerous because, while the
officers were frisking Tobey, she reached back to the area of the vehicle where there were tools
and sharp objects.
The frisk revealed no weapons, and Officer Smith told Doering she was free to drive the
vehicle away. But as Doering reentered the vehicle, this time on the driver' s side, Officer Smith
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Doering did not have her driver' s license, so she gave the officers her name and date of birth.
The officers were able to determine that Doering had a valid driver' s license.
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No. 45766 -1 - II
saw that Doering didn' t just sit in the vehicle, but reached across the interior. Officer Smith used
his flashlight to see what she was reaching for, and saw a pipe that he, through his training,
recognized to be something that would be used to inhale methamphetamines. VRP at 8 -9. Then,
Officer Smith ordered Doering out of the vehicle and detained her to prevent her from destroying
the evidence that he had seen. Having seen the pipe, Officer Smith suspected that Doering
possessed methamphetamine.
Officer Smith looked through the window of the vehicle and saw a one -inch " baggie"
behind the passenger' s seat that had a crystalline substance in it that he believed was
methamphetamine. He then walked over to Doering and Tobey and asked if there were any
drugs in the vehicle, which both of them denied.
The officers gave Doering and Tobey their Miranda2 warnings, then asked for consent to
search the vehicle. Doering and Tobey each signed consent to search forms. A vehicle search
revealed a plastic " baggie" full of a crystal substance and a glass pipe that field-tested positive
for methamphetamines.
The trial court denied Doering' s motion to suppress the evidence, and entered findings of
fact and conclusions of law. The trial court made the following relevant findings of fact:
Finding of fact 1: Officer Chris Smith and Officer Matt Jewett conducted a stop of
Tobey Tobey' s vehicle on March 16, 2013 after dark on private property belonging
to Green Diamond. The Defendant was a passenger in the vehicle. The stop
occurred on private property that was closed during the hours of darkness.
Finding of fact 3: During the course of the stop, a firearm was observed in the
vehicle.
2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694 ( 1966).
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Finding of fact 5: Before exiting the passenger side of the vehicle, the Defendant
made furtive movements and reached into the back of the vehicle behind the
passenger seat. Officer Smith requested that she show him her hands and prompted
her to exit the vehicle. The Defendant exited the vehicle from the passenger side,
she was then frisked by Officer Smith for weapons.
Finding of fact 7: The Defendant and Tobey Tobey consented to a search of the
vehicle orally and in writing after receiving Miranda warnings and advisement of
their right to refuse consent both verbally and in writing.
CPat45, 46.
Doering moved for reconsideration of her CrR 3. 6 motion on the grounds that the trial
court did not consider whether the investigative stop had concluded before the consent search.
The court denied this motion.
At trial, Officers Smith and Jewett testified to the same facts as those from the CrR 3. 6
hearing. The jury convicted Doering of one count of unlawful possession of methamphetamine.
Doering appeals.
ANALYSIS
I. FINDINGS OF FACT
Doering assigns error to several of the trial court' s CrR 3. 6 findings of fact. But
Doering' s brief devotes argument to only a portion of finding of fact 1. Regarding the other
findings, Doering does not cite the record to support her assignments, and cites no authority. We
hold that substantial evidence supports finding of fact 1. We consider the remaining findings of
fact verities.3
3 See State v. Motherwell, 114 Wn.2d 353, 358 n. 3, 788 P. 2d 1066 ( 1990).
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No. 45766 -1 - II
We review the findings of fact entered following a suppression hearing for substantial
evidence in the record. State v. Hill, 123 Wn.2d 641, 647, 870 P. 2d 313 ( 1994). Substantial
evidence is evidence in sufficient quantity to persuade a fair -minded person of the truth of the
finding. State v. Barnes, 158 Wn. App. 602, 609, 243 P. 3d 165 ( 2010). We treat any
unchallenged findings as verities on appeal. Hill, 123 Wn.2d at 644.
Doering challenges finding of fact 1, arguing that insufficient evidence supports the
finding that the road was closed. Doering argues that the trial court' s " blanket finding" that the
road was closed at night is " unsupported by the evidence and must be vacated." Br. of Appellant
at 9 n. 4. We disagree.
Officer Smith testified at the CrR 3. 6 hearing that the officers stopped Tobey' s vehicle
after dark on Green Diamond' s property, which was generally closed during hours of darkness,
and that Doering was a passenger. Signs indicated that the road was closed during hours of
darkness. Other signs indicated that the road was open as an evacuation route during floods, but
there was no flood on the night in question. Thus, substantial evidence supports finding of fact
1, including the finding that the road was " closed during hours of darkness."
II. SEIZURES
Doering challenges conclusions of law 2 and 3, arguing that the officers unlawfully
seized her two times without reasonable suspicion of criminal activity. We. disagree.
We decide de novo whether the trial court' s findings of fact support its conclusions of
law. State v. Armenta, 134 Wn.2d 1, 9, 948 P. 2d 1280 ( 1997). We review de novo whether a
warrantless seizure violates the constitution. State v. Diluzio, 162 Wn. App. 585, 590, 254 P. 3d
218 ( 2011).
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No. 45766 -1 - II
A. Seizure of Vehicle
Doering challenges conclusion of law 2, arguing that the officers unlawfully seized her
by stopping the vehicle without reasonable suspicion that she was trespassing because she, as a
passenger in the vehicle, did not have the power to commit the actus reus necessary for criminal
trespass. The State concedes that Doering was seized, but argues that the seizure was lawful
because the officers observed Doering committing trespassing. We hold that the seizure was
lawful because the officers had a reasonable suspicion based on articulable facts that Doering
was trespassing.
Conclusion of law 2 provides: " Officer Smith had a reasonable and articulable suspicion
that the Defendant and Thomas Tobey were criminally trespassing on private property within
Officer Smith' s sight. Further, Officer Smith had probable cause to arrest the driver and
Defendant of criminal trespass in the second degree. Therefore, the stop of the vehicle was
lawful." CP at 46 -47.
A police officer may conduct an investigative stop that is based on " specific and
articulable facts which, taken together with rational inferences from those facts," give rise to
reasonable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20
L.Ed. 2d 889 ( 1968). It is the State' s burden to prove reasonableness. State v. Cardenas -
Muratalla, 179 Wn. App. 307, 309, 319 P. 3d 811 ( 2014).
4 Although the trial court concluded that Officer Smith had probable cause to arrest Tobey and
Doering for trespass, only the lesser standard of reasonable suspicion was required for him to
stop the vehicle. State v. Arreola, 176 Wn.2d 284, 292 -93, 290 P. 3d 983 ( 2012). And on appeal,
Doering challenges the stop based on reasonable suspicion, not probable cause. We consider
only whether the officers had reasonable suspicion to stop the vehicle..
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No. 45766 -1 - II
When reviewing the lawfulness of an investigative stop, we evaluate the totality of the
circumstances presented to the police officer. State v. Doughty, 170 Wn.2d 57, 62, 239 P. 3d 5732010) Those circumstances may include the police officer' s training and experience. State v.
Glover, 116 Wn.2d 509, 514, 806 P. 2d 760 ( 1991) ( plurality opinion). Second degree criminal
trespass occurs when a person " knowingly enters or remains unlawfully in or upon premises of
another" other than a building. RCW 9A.52. 080.
Conclusion of law 2 flows from the trial court' s finding of fact 1, that Tobey and Doering
were driving after dark on private roads that are generally closed after dark. Because finding of
fact 1, supported by substantial evidence, establishes that officers witnessed Tobey and Doering
traveling on private roads that were closed after dark, the officers had reasonable suspicion based
on articulable facts to believe that Tobey and Doering were committing second degree criminal
trespass. RCW 9A.52. 080 clearly provides that trespass occurs when someone knowingly enters
or remains on the premises of another. Doering and Tobey were clearly on Green Diamond' s
property without permission, and the officers had reasonable suspicion that Doering had
committed trespass.
Doering also argues that the officers did not have reasonable suspicion to seize her
because, as a passenger in the car, she could not have performed the actus reus necessary for
trespass. But the officers were not required to rule out a potential actus reus argument before
forming a reasonable suspicion that Doering was trespassing. All that is needed for a lawful
Terry stop is a reasonable suspicion of criminal activity; " an actual violation is not necessary for
a valid stop." State v. Snapp, 174 Wn.2d 177, 198, 275 P. 3d 289 ( 2012). Thus, the trial court' s
conclusion of law 2 flows from its finding of fact 1, and the trial court did not err by concluding
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No. 45766 -1 - II
that Doering was not unlawfully seized when the officers stopped the vehicle. 5 See State v.
Arreola, 176 Wn.2d 284, 292 -93, 290 P. 3d 983 ( 2012); Snapp, 174 Wn.2d at 197 -98.
B. Weapons Frisk
Doering challenges conclusion of law 3, arguing that the frisk for weapons constituted
another unlawful seizure that vitiated her later consent to search the vehicle. The findings of fact
support conclusion of law 3, because Officer Smith frisked Doering due to concerns for officer
safety generated by Doering' s own actions.
Conclusion of law 3 provides: " During the course of the stop, officer [ sic] Smith had
articulable concerns for officer safety ( i. e.[,] he had observed a firearm in the vehicle and the
Defendant made furtive movements), and therefore he had a legal basis to frisk the Defendant for
weapons." CP at 47.
During an investigation of possible criminal activity, a police officer is entitled to
protection, and may conduct a carefully limited search of the outer clothing of a person in an
attempt to discover weapons that might be used to assault the officer. Terry, 392 U.S. at 30. A
police officer is permitted to stop and frisk an individual when the officer has an objectively
reasonable belief, based on specific and articulable facts, that the individual could be armed and
dangerous. State v. Russell, 180 Wn.2d 860, 868, 330 P. 3d 151 ( 2014); State v. Horrace, 144
Wn. 2d 386, 400, 28 P. 3d 753 ( 2001).
5
Doering argues that the officers further seized her when they requested her name and date of
birth " without any reason to believe that she was engaged in criminal activity." Br. of Appellant
at 10. We decline to reach this argument, because Doering raises it for the first time on appeal.
RAP 2. 5( a); State v. Kirkman, 159 Wn.2d 918, 926, 155 P. 3d 125 ( 2007).
No. 45766 -1 - II
Here, Officer Smith lawfully frisked Doering. Conclusion of law 3 flows from findings
of fact 3 and 5, providing that Officer Smith had articulable concerns for his own safety based on
Doering' s furtive movements and the presence of other firearm in the vehicle. These articulable
concerns were based on Doering' s own behavior —the fact that she reached into the rear of the
vehicle towards the sharp objects and pit bull during Tobey' s weapons frisk. Thus, Officer
Smith had an objectively reasonable belief, based on specific and articulable facts, that Doering
could have been armed and dangerous. Russell, 180 Wn.2d at 868.. The " pat- down" for weapons
did not violate Doering' s constitutional rights.
III. CONSENT
Doering challenges conclusions of law 5 and 6, arguing that the foregoing unlawful
seizures invalidated her consent for the officers to search the vehicle. Because we hold that the
officers did not at any time unlawfully seize or search Doering, we hold that her consent was not
invalidated. 6
Conclusion of law 5 provides: " The driver ( Tobey Thomas [ sic]) and the Defendant
freely and voluntarily consented to a search of their vehicle." CP at 47. Conclusion of law 6
6 We hold that Doering waived several other assignments of error by failing to support them with
argument in her opening brief. RAP 10. 3( 6); Smith v. King, 106 Wn.2d 443, 451 -52, 722 P. 2d
796 ( 1986). Doering assigns error to all of conclusion of law 6. The first sentence of conclusion
of law 6 provides: " The detention of the Defendant was brief, the officer safety frisk was limited
in scope, and the subsequent search of the vehicle was brief, limited in scope, and within the
scope of the consent provided." CP at 47. Doering does not argue that the duration of the
detention, the scope of the weapons frisk, or the scope of the vehicle search violated her
constitutional rights. Doering also challenges conclusions of law 4 and 7, but Doering does not
provide argument about these conclusions in her argument. We deem these assignments of error
waived.
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provides in relevant part: " Moreover, both the driver and the Defendant were authorized to give
consent." CP at 47.
Consent is an exception to the warrant requirement, and the State bears the burden of
demonstrating that consent was voluntarily given. State v. Walker, 136 Wn.2d 678, 682, 965
P. 2d 1079 ( 1998). If officers have already unlawfully seized or searched an individual, that
individual' s subsequent consent to further searches may be invalidated. State v. Cantrell, 70 Wn.
App. 340, 346, 853 P. 2d 479 ( 1993), overruled in part on other grounds, 124 Wn.2d 183, 875
P. 2d 1208 ( 1994); State v. Coyne, 99 Wn. App. 566, 574, 995 P. 2d 78 ( 2000) ( outlining the four
nonexclusive factors courts use to consider whether a previous unlawful detention invalidated
subsequent consent to search). When two people are present in a vehicle and they appear to
exercise approximately equal control over the vehicle, then both occupants have authority to
consent, and officers must obtain consent from both occupants before searching the vehicle. See
Cantrell, 124 Wn.2d at 188.
Both conclusions of law 5 and 6 flow from the trial court' s finding of fact 7, that Tobey
and Doering consented in writing to the search and were Mirandized. And as discussed above,
we hold that none of the officers' actions before seeking consent constituted an unlawful search
or seizure. Thus, because we hold that none of the foregoing searches and seizures was illegal,
nothing vitiated Doering' s consent.
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We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
We concur:
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