State Of Washington v. Maksim v. Burich ( 2015 )

FILED
COURT OF APPEALS
DIVISION 11
2015 JUN - 4 AM 8: 35
STA OFASH! .OTOU
BY
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 45400 -9 -II
Respondent,
v.
MAKSIM V. BURICH, UNPUBLISHED OPINION
Appellant.
SUTTON, J. — Maksim V. Burich appeals his bench trial convictions for first degree
burglary, second degree unlawful possession of a firearm, theft of a firearm, residential burglary,
and second degree criminal trespass. He argues that the trial court erred in failing to suppress
evidence obtained by a police officer during a Terry' investigative stop. He argues that the trial
court erred in including Burich' s race in Findings of Fact 2 and 3 as part of the facts upon which
the court made its Conclusion of Law 1 ( ruling that the officer' s stop was justified based on a
reasonable, articulable suspicion that Burich was involved in criminal activity). Because
substantial evidence supports the trial court' s findings of fact, and because those findings support
1
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 ( 1968).
No. 45400 -9 -II
the court' s legal conclusion, we hold that the trial court did not err in failing to suppress evidence
obtained as a result of the officer' s Terry stop. We affirm.
FACTS
At approximately 2: 24 AM on October 8, 2012, Martin Blackmer awoke to a stranger
leaning through the sliding door of his residence. Blackmer yelled at the individual, who then ran
out the door. Blackmer immediately called the police, and described the intruder to police dispatch
as a " slender, white male, younger, with a light- colored hooded sweatshirt." 1 Verbatim Report
of Proceedings ( VRP) at 68.
Shortly afterwards, at approximately 3: 00 AM, Katherine Evans awoke to her dog growling
and a ticking sound coming from her backyard. Evans looked out her bedroom window and saw
a stranger in her backyard next to the living room window. She made eye contact with the
individual, whom she described to police dispatch as a " slender, white male with a light gray
hoodie and light -colored pants." 1 VRP at 71. The individual ran from the house and Evans called
the police.
Jason Dashnow returned from his shift on the night between October 7 and October 8 to
find that his apartment had been burglarized. Dashnow called the police. Dashnow' s apartment
is located across the street from Blackmer' s residence and 1. 5 miles from Evans' s residence.
Officer Jacob Stringfellow responded to the Blackmer residence call at. 2: 26 AM on
October 8, 2012. Blackmer told Officer Stringfellow that he had fallen asleep on his couch
watching television, and woke up to see a " slender, white male, younger, with a light -colored
hooded sweatshirt or ... hoodie" in his living room. 1 VRP at 68.
No. 45400 -9 -II
At approximately 3: 05 AM, police dispatch notified Officer Patrick Gilbert of an attempted
intrusion into Evans' s residence. Dispatch described the intruder as " an unknown race male,
possibly a teenager, wearing a light -colored hoodie and some jeans," and stated that the intruder
fled in a westbound direction. 1 VRP at 11. Officer Gilbert drove one -half mile southwest of the
reported burglary location and began looking for the intruder in an area known as " Saddle Creek."
1 VRP at 11, 16.
When Officer Gilbert arrived in Saddle Creek, at approximately. 3: 11 AM, there was no
traffic in the area; he added white take -down lights and alley lights to his headlights to illuminate
the scene. He drove between three and five miles per hour and, upon rounding a corner in his
police vehicle at approximately 3: 17 AM, he " saw a red car, lights completely off, headed directly
towards [ him], [ with] a male inside of the car that matched the individual [ he] was looking for."
1 VRP at 17. The red car was driving at less than five miles per hour. Officer Gilbert directed his
spotlight into the car and observed a " white male, short, brown hair and he was wearing a light-
colored hoodie." 1 VRP at 18. The driver " appeared to be youthful in appearance." 1 VRP at 18.
The car stopped approximately 30 feet from Officer Gilbert' s patrol car; Officer Gilbert
stepped outside his patrol car and ordered the driver to display his hands. Officer Gilbert asked
for identification, which the driver was unable to provide. Officer Gilbert asked the driver to step
from the vehicle, placed him in handcuffs, and told the driver that he was a burglary suspect. The
driver identified himself as Maksim V. Burich. Burich told Officer Gilbert that his headlights were
off because he was lost.
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No. 45400 -9 -II
From outside the vehicle, Officer Gilbert observed a stereo unit on the front seat passenger
floorboard and a . 22 caliber rifle behind the driver' s seat " sticking up ... in plain view" on the
rear passenger floorboard. 1 VRP at 27. Officer Gilbert performed a records check on Burich' s
name and learned that he was a convicted felon restricted from possessing firearms. •Officer Gilbert
Miranda2
then placed Burich under arrest and read him his rights. Neither Officer Gilbert nor
Officer Stringfellow questioned Burich after advising him of his Miranda rights. At approximately
3: 42 AM, after Burich was placed in the patrol car, another police officer arrived on the scene with
Katherine Evans. Evans positively identified Burich as the individual who was trying to enter her
house.
On October 9, 2012, the State charged Burich with burglary in the first degree ( Count I),
unlawful possession of a firearm in the second degree ( Count II), theft of a firearm ( Count III),
residential burglary ( Count IV), and attempted residential burglary ( Count V). On August 15,
2013, the case proceeded to a bench trial, which began with a CrR 3. 5/ 3. 6 hearing after which the
trial court concluded that Burich' s statements to police were admissible at trial. On September 6,
2013, the trial court found Burich guilty as to Counts I -IV; and guilty of the lesser included offense
of "criminal trespass in the second degree" as to Count V. 7 VRP at 2 -4; Clerk' s Papers ( CP) at
176.
2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).
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No. 45400 -9 -II
The court entered the following findings of fact3 related to the events leading up to the
stop:
1. That on October 8, 2012, at 2: 24 a.m. the Fife Police Department received a
phone call from Martin Blackmer of an attempted residential burglary at his
residence, which is a townhouse located at 6826 20th Street East in Fife,
Washington.
2. That Mr. Blackmer had seen a young white male wearing a light grey hoodie
and a light grey pants enter his residence through a sliding glass door.
3. That at 2: 26 a.m. on October 8, 2012, Officer Jake Stringfellow of the Fife Police
Department was dispatched to Mr. Blackmer' s townhouse where the officer spoke
to Mr. Blackmer and then conducted an area check, without success, for the suspect.
3. [ sic] That on October 8, 2012, at approximately 3: 00 a. m., Katherine Evans
looked out her upstairs bedroom window and saw a young white male with short
light brown hair wearing a light grey hoodie and jeans in her backyard next to the
living room window. The living room window was below Mrs. Evans' bedroom
window.
4. That Mrs. Evans' house is located at 6932 42nd Street Court East in Fife,
Washington and is 1. 5 miles from Mr. Blackmer' s townhouse.
5. That at 3: 05 a.m. on October 8, 2012, Officers Pat Gilbert and Stringfellow went
to investigate the possible burglary at the Evans' residence.
6. That officers Gilbert and Stringfellow drove in the area near the Evans residence
and conducted an area check for the suspect.
7. That at 3: 17 a.m. on October 8, 2012, Officer Gilbert saw a red Mazda driving
very slowly with the headlights off at 46th Street East and 67th Avenue East in Fife,
Washington.
The trial court mistakenly numbered Finding of Fact 3 twice; Burich does not challenge both
Findings of Fact 3, only the second one summarizing Evans' s description of Burich.
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No. 45400 -9 -II
8. That Officer Gilbert was in a fully marked patrol car and had on his headlights,
his alley lights and an overhead spotlight. Upon seeing the red Mazda, Officer
Gilbert turned his side spotlight on and used it to highlight the inside of the car.
9. That the driver of the red Mazda was a young white male and he was the only
occupant of the car.
10. That the defendant was the driver of the red Mazda and he was wearing a light
grey hoodie.
CP at 189 -90. On the basis of these findings, the court concluded, " That there were sufficient
suspicious circumstances which supported reasonable suspicion to stop the defendant pursuant to
a Terry or investigatory stop." CP at 194. Burich appealed.
ANALYSIS
Burich assigns error to Findings of Fact ( FF) 2 and 3 and Conclusion of Law (CL) 1 that
Officer Gilbert' s Terry stop was justified. But his brief addresses only the portion of the trial
4
court' s findings referring to Burich' s race. Burich argues that, " at the time of the stop, the only
information the officer had from dispatch was that an ``unknown race' male, wearing a grey hoodie
and jeans, had attempted to enter a nearby apartment." Br. of Appellant at 11. Based on this fact,
he argues that ( 1) the trial court erred in its finding that the suspect was described as " a young
white male," rather than as an " unknown race male," ( 2) the findings did not support the trial
court' s conclusion that Officer Gilbert had reasonable, articulable suspicion to justify a stop for a
criminal investigation, and ( 3) the court should have suppressed evidence gathered from the Terry
4 RAP 10. 3( a)( 6) requires appellant to support issues presented for review with argument, citations
to legal authority, and references to relevant parts of the record.
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No. 45400 -9 -II
stop. 5 . We hold that substantial evidence supports the trial court' s findings of fact, those findings
support its conclusion that the Terry stop was justified, and the trial court did not error in failing
to suppress evidence gathered from the stop.
We review the findings of fact to determine whether they are supported by substantial
evidence. State v. Dobbs, 180 Wash. 2d 1, 10, 320 P.3d 705 ( 2014). "`` Substantial evidence exists
where there is a sufficient quantity of evidence in the record to persuade a fair -minded, rational
person of the truth of the finding. "' State v. Bonds, 174 Wash. App. 553, 562, 299 P.3d 663, review
denied, 178 Wash. 2d 1011 ( 2013) ( quoting State v. Hill, 123 Wash. 2d 641, 644, 870 P.2d 313 ( 1994)).
We review de novo conclusions of law following a suppression hearing. State v. Bailey, 154 Wn.
App. 295, 299, 224 P.3d 852 ( 2010). A finding of reasonable suspicion presents a question of law
that we review de novo. State v. Lee, 147 Wn. App. 912, 916, 199 P.3d 445 ( 2008). Unchallenged
findings of fact are verities on appeal. State v. Westvang, 184 Wash. App. 1, 5, 335 P.3d 1024
2014).
Article 1, section 7 of the Washington Constitution protects individuals " against
unwarranted government intrusions into private affairs," such as unlawful searches and seizures.
State v. Doughty, 170 Wash. 2d 57, 61, 239 P.3d 573 ( 2010). "[ W] arrantless seizures are per se
unreasonable, and the State bears the burden of demonstrating that a warrantless seizure falls into
5
Br. of Appellant at 11. Burich also argues that the State presented no evidence that he was cited
for a He presumably refers to the fact that he was driving at night with his
traffic infraction.
headlights off. But he fails to cite authority or argue that the State was required to cite Burich for
a traffic infraction even if the conduct ( driving with his lights off) was a factor in the officer' s
decision to stop him.
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No. 45400 -9 -II
a narrow exception to the rule." Doughty, 170 Wash. 2d at 61. Such " exceptions are `` jealously and
carefully drawn. ' Id. (quoting State v. Williams, 102 Wash. 2d 733, 736, 689 P.2d 1065 ( 1984)).
One exception to the warrant requirement is an investigative stop of a vehicle, also known
as a Terry stop. A valid Terry stop requires the police officer to "' point to specific and articulable
facts which, taken together with rationale inferences from those facts, reasonably warrant that
intrusion. ' State v. Snapp, 174 Wash. 2d 177, 197, 275 P.3d 289 ( 2012) ( quoting Terry v. Ohio, 392
U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 ( 1968)); see Doughty, 170 Wash. 2d at 62 ( "[ a] Terry
requires a well- founded suspicion that the defendant engaged in criminal conduct "). " A
stop
reasonable, articulable suspicion means that there ``is a substantial possibility that criminal conduct
has occurred or is about to occur.' Snapp, 174 Wash. 2d at 197 -98 ( quoting State v. Kennedy, 107
Wash. 2d 1, 6, 726 P.2d 445 ( 1986)); State v. Jardinez, 184 Wash. App. 518, 524, 338 P.3d 292 ( 2014).
The State bears the burden to show by clear and convincing evidence that the Terry stop was
justified. Doughty, 170 Wash. 2d at 62. " In reviewing the propriety of a Terry stop, a court evaluates
the totality of the circumstances" presented to the officer at the time of the stop. Snapp, 174 Wash. 2d
at 198; see Doughty, 170 Wash. 2d at 62.
Burich argues that, at the time of the stop, Officer Gilbert knew only that an "' unknown
race' male, a grey hoodie and jeans, had attempted to enter a nearby apartment," and that,
wearing
consequently, Officer Gilbert' s basis for the Terry stop was insufficient. Br. of Appellant at 11.
At trial, Officer Gilbert stated that his reason for stopping Burich was: " I thought it was pretty
weird, but I thought, [ t] his is someone who doesn' t want to be seen and is sneaking around the
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No. 45400 -9 -II
neighborhood, and so I stopped him." 1 VRP at 60 -61. Burich argues that, based on this statement,
the stop was unlawful because the officer' s suspicion did not relate to a particular crime; it was
merely " a generalized suspicion that the person detained is `` up to no good.'" Br. of Appellant at
10 ( quoting State v. Bliss, 153 Wash. App. 197, 204, 222 P.3d 107 ( 2009). But evidence in the record
from Blackmer' s, Evans' s, and Officer Gilbert' s testimonies6 provides substantial evidence to
support the trial court' s findings of fact, and all three testified that Burich was a white male.
Burich does not challenge Findings of Fact 1 and 4 -10 which we adopt as verities on appeal.
See Wilson & Son Ranch, LLC v. Hintz, 162 Wn. App. 297, 305, 253 P.3d 470 ( 2011). The
unchallenged findings describe Officer Gilbert' s ( 1) knowledge of the location of the burglaries,
2) knowledge of the suspect' s clothing, (3) observations of the suspect and the suspect' s clothing,
4) observations of the vehicle and the time, place, and manner in which Burich drove the vehicle,
6 Officer Gilbert testified that, at the time of the stop, approximately 3: 17 AM, Burich was driving
the vehicle slowly, with its lights off, in the vicinity of the recent burglaries. He testified that the
driver, Burich, was " a white male, short, brown hair and he was wearing a light -colored
hoodie.... He appeared to be youthful in appearance." 1 VRP at 18.
Blackmer testified to the burglary and his description of the suspect, whom he " observed
to be a white Caucasian male between the early 20s to mid 20s, gray hooded sweatshirt." 4 VRP
at 4. He stated that he was sleeping in his living room when he awoke to a " loud sound" and saw
the individual " three- quarters of the way in through [ the] sliding glass door." 5 VRP at 58.
Evans also testified to the incident and the suspect' s description, stating that she " saw a
young guy,short hair .. light- colored baggy pants and a gray hoodie.... Caucasian" at her back
window. 5 VRP at 34. She testified that her window "screen had been removed from the window."
5 VRP at 37. She also testified that she subsequently identified the person stopped by police as
the individual at her window.
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No. 45400 -9 -II
and ( 5) the location' s proximity to the recent burglaries. On the basis of these unchallenged
findings alone, we would find that sufficient evidence supports the trial court' s conclusion of law
that the officer was justified in stopping Burich. State v. Garvin, 166 Wash. 2d 242, 249, 207 P.3d
1266 ( 2009).
Burich also assigns error to the trial court' s Conclusion of Law 1, which provides, " That
there were sufficient suspicious circumstances which supported reasonable suspicion to stop the
defendant pursuant to a Terry or investigatory stop." CP at 194 ( CL 1). The State responds that
the trial court' s Findings of Fact 1 - 3, 7, 9, and 10 support its conclusion of law that Officer Gilbert
had sufficient justification to stop Burich.
In examining the totality of circumstances facing Officer Gilbert, we hold that the facts
here provided sufficient individualized suspicion that Burich had just been involved in the
burglaries that the officer knew to have taken place nearby. See Lee, 147 Wash. App. at 916 -17.
These are " specific and articulable facts which, taken together with rational inferences from those
facts, reasonably warrant[ ed] the intrusion." Bliss, 153 Wash. App. at 204.
We hold that substantial evidence supports Findings of Fact 2 and 3 and that the trial court' s
findings of fact support its legal conclusion that Officer Gilbert was justified in stopping Burich.
7 In its written order following the CrR 3. 5/ 3. 6 hearing, the trial court entered numerous findings
of fact, all of which are either verities or supported by substantial evidence. We look at the entirety
of the trial court' s factual findings to determine whether they support the trial court' s legal
conclusion that the Terry stop was justified.
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No. 45400 -9 -II
Accordingly, we hold that the trial court did not err in failing to suppress evidence obtained as a
result of the officer' s Terry stop. We affirm Burich' s convictions.
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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