State Of Washington, V. Raymond Erickson

Filed
Washington State
Court of Appeals
Division Two
November 2, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 54736-8-II
Respondent,
v.
RAYMOND CHARLES ERICKSON, UNPUBLISHED OPINION
Appellant.
VELJACIC, J. – Following a bench trial, the trial court convicted Raymond C. Erickson of
two counts of unlawful possession of a firearm in the second degree and one count of unlawful
possession of a controlled substance, methamphetamine. He challenges the legality of the stop
that led to the firearm convictions and he challenges his controlled substance conviction under
State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021). Because the court did not err in denying
Erickson’s CrR 3.6 motion to suppress the firearms, we affirm his unlawful possession of a firearm
in the second degree conviction. However, in light of Blake, we reverse Erickson’s unlawful
possession of a controlled substance conviction and remand for resentencing.
FACTS1
Around noon on August 6, 2019, Department of Corrections Officer Thomas Grabski and
Pierce County Sheriff’s Deputy Carl Olson were sitting inside their vehicles in a store parking lot.
Both officers are members of the South Sound Gang Task Force. They observed the occupants of
1
The facts derive in part from the trial court’s CrR 3.6 findings of fact, which are all, except
finding of fact 17, unchallenged and therefore verities on appeal. State v. O’Neill, 148 Wn.2d 564,
571, 62 P.3d 489 (2003).
54736-8-II
a Dodge Dart drive by and throw garbage out the windows.2 Grabski asked Olsen if he should
stop the vehicle. Olson responded yes. Neither officer knew the individuals inside the vehicle.
Grabski pulled his vehicle behind the Dodge and activated his emergency lights. The driver
of the vehicle, Matthew Fullerton, pulled over. Erickson was in the passenger seat. Erickson told
Olson that he recognized him from a prior police encounter. Olson asked Erickson if he was on
community custody, and he said yes. Grabski asked Fullerton if he was also on community
custody, and he said yes. Erickson did not have identification on him, but he provided Olson with
his name and birthdate.
Olson walked back to his vehicle to confirm the men’s identities. At that time, he learned
both Fullerton and Erickson were indeed on active Department of Corrections community custody
supervision and both were prohibited from possessing drugs or drug paraphernalia.
Olson walked back to the Dodge. He then observed a glass pipe inside the vehicle’s opened
driver side door compartment and informed Grabski. Because this was a violation of a community
custody condition, Grabski conducted a compliance check of the Dodge.
Grabski opened the trunk and observed a locked backpack. He picked up the backpack
and, based on his experience, believed the weight of the bag was consistent with a bag containing
firearms. He asked who the backpack belonged to and Erickson told the officer that it was his and
that there was a gun inside. When Grabski opened the backpack he located two firearms, drug
paraphernalia, and a small bag of methamphetamine.
The State charged Erickson with two counts of unlawful possession of a firearm in the
second degree and unlawful possession of methamphetamine. Erickson moved to suppress the
firearms and methamphetamine based on unlawful seizure and search. He argued that the stop of
2
Littering is a civil infraction. Former RCW 70.93.060(2)(a) (2003).
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the car, which led to the search of the car, was pretextual. The trial court denied his motion. The
court found that “Neither Deputy Olson nor Officer Grabski had a pretextual reason for stopping
the vehicle.” Clerk’s Papers (CP) at 70 (Finding of Fact 17). The court then concluded that the
stop “was not pretextual.” CP at 74 (Conclusion of Law 2)
Erickson proceeded to a stipulated facts bench trial where the trial court convicted him as
charged. The court imposed a standard range sentence based on Erickson’s offender score of 9+.
Erickson appeals.
ANALYSIS
I. MOTION TO SUPPRESS
Erickson argues that the trial court erred in denying his CrR 3.6 motion to suppress because
he contends that the stop of the Dodge, which led to the search of the car and the finding of
contraband, was pretextual. He further argues that, assuming the stop was lawful, the officers
exceeded the scope of the stop. We disagree.
A. Standard of Review
We review a trial court’s decision on a CrR 3.6 motion to suppress evidence to determine
whether substantial evidence supports the court’s findings of fact and whether those findings
support the conclusions of law. State v. Russell, 180 Wn.2d 860, 866, 330 P.3d 151 (2014).
“Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the
finding’s truth.” State v. Stewart, 12 Wn. App. 2d 236, 240, 457 P.3d 1213 (2020). We review
conclusions of law de novo. Id.Erickson challenges the trial court’s finding that the officers did not have a pretextual
reason for stopping the Dodge and the court’s conclusion that the stop was not pretextual.
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B. Traffic Stop
In general, the Fourth Amendment to the United States Constitution and article I, section
7 of the Washington Constitution prohibit searches and seizures absent a warrant or an exception
to the warrant requirement. State v. Ladson, 138 Wn.2d 343, 348-50, 979 P.2d 833 (1999). The
State bears the burden of showing that an exception to the warrant requirement applies. Id. at 350.
There are several recognized exceptions to the warrant requirement including consent,
exigent circumstances, inventory searches, searches incident to arrest, plain view, and investigative
Terry3 detentions. Id. at 349. A stop is also permitted to “issue a notice of a civil infraction.”
State v. Duncan, 146 Wn.2d 166, 178, 43 P.3d 513 (2002). A stop to issue a civil infraction is
distinct from a Terry stop. Id. Littering is a civil infraction. Former RCW 70.93.060(2)(a) (2003).
An enforcement officer may issue a notice of civil infraction if the infraction occurs in the officer’s
presence. RCW 7.80.050(2).
Pretextual traffic stops are unconstitutional under Washington’s constitution. Ladson, 138
Wn.2d at 353, 358. A traffic stop is pretextual when an officer relies on some legal authorization
as “a mere pretext to dispense with [a] warrant when the true reason for the seizure is not exempt
from the warrant requirement.” Id. at 358. The court in Ladson reasoned, “[T]he problem with a
pretextual traffic stop is that it is a search or seizure which cannot be constitutionally justified for
its true reason (i.e., speculative criminal investigation), but only for some other reason (i.e., to
enforce traffic code) which is at once lawfully sufficient but not the real reason.” Id. at 351. When
determining whether a stop is pretextual, we consider the totality of the circumstances, including
the subjective intent of the officer and the objective reasonableness of the officer’s behavior. Id.
at 358-59. A failure to issue a citation is one factor to be considered when determining the officer’s
3
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
4
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subjective intent. State v. Hoang, 101 Wn. App. 732, 742, 6 P.3d 602 (2000). When an
unconstitutional search or seizure occurs, all subsequently uncovered evidence must be
suppressed. State v. Betancourth, 190 Wn.2d 357, 364, 413 P.3d 566 (2018).
Erickson challenges the trial court’s finding that the officers did not have a pretextual
reason for stopping the Dodge and the court’s subsequent conclusion that the stop was not
pretextual.
Here, Grabski and Olson were sitting inside their vehicles in a store parking lot. They
observed the occupants of the Dodge throw trash out the vehicle’s windows. The officers decided
to stop the vehicle for littering. At the time, the officers did not recognize the occupants in the
vehicle and there was no other basis for the stop.
Because the individuals inside the Dodge committed a civil infraction in the officers’
presence, the officers had a basis to stop the vehicle. RCW 7.80.050(2); Duncan, 146 Wn.2d at
178. Based on the totality of the circumstances, the officers’ subjective intent was to issue a
citation for littering. While the officers ultimately did not issue the citation, the subsequent
sequence of events justifies the lack of a citation. The officers’ decision to stop the vehicle was
also objectively reasonable. We hold that substantial evidence supports the trial court’s finding
that the officers did not have a pretextual reason for stopping the Dodge and the court’s subsequent
conclusion that the stop was not pretextual.
C. Scope of Stop
Erickson next argues that the officers exceeded the scope of a lawful stop to issue a citation
for a civil infraction by investigating whether Fullerton and Erickson were on community custody.
Erickson did not identify this argument below as a basis for suppressing the evidence seized.
Because of this, we are without the benefit of findings of fact or conclusions of law to review this
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issue. In general, the failure to raise an issue below precludes appellate review. RAP 2.5(a)(3).
However, in his motion to suppress, Erickson stated, “When stopping someone for littering, it is a
‘give the person their ticket for the $50 fine and go’ situation. The stop may not be extended
further.” CP at 15. Erickson also points to several places in the record where the trial court makes
passing comments about the detention. Assuming this is sufficient to preserve the issue for review,
we conclude the valid scope of the stop to issue a citation for a civil infraction was not exceeded.
A stop is generally limited in scope and duration to fulfill the purpose of the stop. State v.
Acrey, 148 Wn.2d 738, 747, 64 P.3d 594 (2003). “When issuing notice of a civil infraction, an
officer may briefly detain a person long enough to check his or her identification.” Duncan, 146
Wn.2d at 174. A stop for a civil infraction where no vehicle is involved is not as broad in scope
as a stop for a traffic infraction. See Id.In Duncan, officers noticed Duncan sitting at a bus stop with what appeared to be a bottle
inside a paper bag on the bench next to him. 146 Wn.2d at 169. They approached Duncan with
the intent to cite him for violating the city’s open container ordinance. Id. One of the officers
recognized Duncan from prior police contact. Id. The officer remember that Duncan had a violent
history. The officer decided to frisk Duncan because he was wearing a bulky jacket; he discovered
a handgun in Duncan’s waistband. Id. at 170. Officers also located stolen property. Id. Duncan
filed a motion to suppress the evidence seized. The trial court granted the motion. Id. The
Supreme Court agreed with the trial court, holding that the scope of a stop for a “nontraffic civil
infraction” is limited. Id.at 170.
Here, the civil infraction occurred inside a moving vehicle. In this sense, the stop is more
analogous to a stop for a traffic infraction. As the Supreme Court stated in Duncan, “Traffic
violations create a unique set of circumstances that may justify [the] extension of Terry.” For
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example, “‘the ready mobility of vehicles and governmental interests in ensuring safe travel.’” Id.
at 174 (quoting State v. Johnson, 128 Wn.2d 431, 454, 909 P.2d 293 (1996)). Terry stops may be
prolonged when interaction with a suspect “‘arouses further suspicions.’” State v. Smith, 115
Wn.2d 775, 785, 801 P.2d 975 (1990) (quoting State v. Guzman-Cuellar, 47 Wn. App. 326, 332,
734 P.2d 966 (1987)). Notably, this case is distinguishable from State v. Day, 161 Wn.2d 889,
898, 168 P.3d 1265 (2007), where our Supreme Court declined to extend Terry to a parked vehicle
that was the subject of a parking infraction. Instead, this case concerns an infraction involving a
moving vehicle, squarely within the unique set of circumstances that may justify extension of
Terry, as held in Johnson, 128 Wn.2d 431.
Here, the initial stop was lawful. During that stop, Erickson did not provide a form of
identification, but instead identified himself only verbally. He also volunteered that he had a prior
police encounter with Olson. Moreover, after Erickson began the conversation, Olson was
permitted to follow up by asking if Erickson was on community custody. He said yes. Grabski
then asked Fullerton if he was also on community custody and he said yes.4 Meanwhile, Olson
walked to his vehicle, confirmed the men were on community custody, learned they were restricted
from possessing drug paraphernalia, and returned to the Dodge. All this is within the permissible
scope of a traffic stop for an infraction associated with a moving vehicle where an officer must
attempt to confirm the identity of the driver. At this point, based on our unchallenged findings of
fact, the pipe was discovered in plain view inside the vehicle.
The possession of the pipe was a community custody violation. This provided articulable
facts to justify extending the scope of the stop, which eventually led to the discovery of the firearms
4
We do not take Erickson’s argument as asserting rights on behalf of Fullerton; Erickson lacks
standing to do so.
7
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and methamphetamine. Therefore, we conclude the purpose of the stop reasonably expanded to
include investigations for the community custody violation. The lawful scope of the stop was not
exceeded.
II. UNLAWFUL POSSESSION OF A CONTROLLED SUBSTANCE CONVICTION
Erickson argues that his unlawful possession of methamphetamine conviction should be
reversed. We agree.
In Blake, our Supreme Court held that former RCW 69.50.4013(1) (2017), the statute
criminalizing simple possession of a controlled substance, is unconstitutional and, therefore, void.
197 Wn.2d at 186, 195. After the court decided Blake, Erickson filed a supplemental brief asking
us to remand for the trial court to vacate his conviction for unlawful possession of a controlled
substance and resentence him because that conviction was included in his offender score. The
State concedes that this is the appropriate remedy.
When the Supreme Court holds a statute unconstitutional, anyone who has been convicted
under that statute is entitled to have their conviction vacated. See State v. Carnahan, 130 Wn.
App. 159, 164, 122 P.3d 187 (2005). A conviction based on an unconstitutional statute cannot be
considered in calculating an offender score. State v. Ammons, 105 Wn.2d 175, 187-88, 713 P.2d
719, 718 P.2d 796 (1986).
The trial court convicted Erickson of unlawful possession of a controlled substance,
methamphetamine, in violation of former RCW 69.50.4013(1). This conviction was included in
Erickson’s offender score. In light of Blake, we accept the State’s concession, reverse Erickson’s
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conviction for unlawful possession of a controlled substance, and remand for the trial court to
vacate that conviction and resentence Erickson with his updated offender score.5
CONCLUSION
Because the court did not err in denying Erickson’s CrR 3.6 motion to suppress the
firearms, we affirm his unlawful possession of a firearm in the second degree convictions.
However, in light of Blake, we reverse Erickson’s unlawful possession of a controlled substance
conviction and remand for resentencing.
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.
Veljacic, J.
I concur:
Glasgow, A.C.J.
5
We note that Erickson has multiple prior convictions for unlawful possession of a controlled
substance. Defendants who were sentenced based on an offender score that included prior
convictions under RCW 69.50.4013(1) are entitled to resentencing. State v. LaBounty, 17 Wn.
App. 2d 576, 581-82, 487 P.3d 221 (2021). We direct the trial court to take this into account when
resentencing.
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WORSWICK, J. (concurring) — I agree with the resolution of this case. However, I write
separately because I disagree with the majority’s expansion of the rule to apply the Terry6
exception to a civil infraction involving a “moving vehicle.” Majority at 6.
ADDITIONAL FACTS
Prior to a stipulated bench trial in this case, Erickson filed a motion to suppress under
CrR 3.6, and the trial court conducted an evidentiary hearing. During that hearing, Department
of Corrections (DOC) Officer Thomas Grabski and Pierce County Sheriff’s Deputy Carl Olson
testified.
Officer Grabski testified that they observed a vehicle as “it started to be in motion”
“throwing trash from its windows” onto a parking lot. Report of Proceedings (RP) at 10-11.
Officer Grabski stopped the vehicle at Deputy Olson’s request after the vehicle pulled onto the
street. Deputy Olson contacted Erickson who was sitting in the front passenger seat. Erickson
said he did not have any identification on him, but instead told Deputy Olson his name. Deputy
Olson went back to his vehicle to run the names of the vehicle’s occupants while Officer Grabski
remained at the vehicle.
The law enforcement database revealed that both Erickson and Fullerton were under
DOC supervision. While Deputy Olson was running names, Officer Grabski asked Fullerton if
he was under DOC supervision, and Fullerton responded in the affirmative. Officer Grabski
asked Fullerton to step out of the car so he could speak with him. Officer Grabski testified that
he wanted to speak with Fullerton because he was on active supervision with DOC, had just been
“littering on the streets,” and was in a known drug area. RP at 20. He had Fullerton step out of
the vehicle because he wanted to speak with Fullerton alone, and because he had been “digging
6 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
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around in the vehicle.” RP at 21. When Deputy Olson returned to the vehicle after running
names, he saw a drug pipe in a slot in the open driver’s door.
ANALYSIS
Erickson argues that because this was a stop for a civil infraction, the officers exceeded
the proper length and scope of this stop when they questioned the occupants about their DOC
status, ran their names through the law enforcement database, and removed Fullerton from the
vehicle. The majority resolves these arguments by determining that because this civil infraction
involved a moving vehicle, the Terry exception to the warrant requirement applies. Majority at
6. I disagree.
Our Supreme Court “jealously protects” our constitutional rights and has clearly stated
that the Terry exception to the warrant requirement does not extend to civil infractions. State v.
Day, 161 Wn.2d 889, 897, 168 P.3d 1265 (2007). Our Supreme Court has shown no sign of
expanding the rule and has warned against “judicial creativity” modifying the rule to weaken
constitutional protections. Day, 161 Wn.2d at 898. Thus, I cannot agree with the majority’s
analysis. However, I agree that the officers involved here did not violate Erickson’s
constitutional rights.
First, RCW 7.80.060 states:
A person who is to receive a notice of civil infraction under RCW 7.80.050 is
required to identify himself or herself to the enforcement officer by giving his or
her name, address, and date of birth. Upon the request of the officer, the person
shall produce reasonable identification, including a driver’s license or identicard.
A person who is unable or unwilling to reasonably identify himself or herself to an
enforcement officer may be detained for a period of time not longer than is
reasonably necessary to identify the person for purposes of issuing a civil infraction.
Because Erickson was unable to produce reasonable identification, Erickson’s detention
by Deputy Olson for the purposes of verifying Erickson’s identity was proper.
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Second, Officer Grabski’s conversation with Fullerton did not extend the length or scope
of the stop. When a law enforcement officer stops an individual, “the detention length and scope
must be reasonably related to the circumstances justifying the stop.” State v. Veltri, 136 Wn.
App. 818, 822, 150 P.3d 1178 (2007).
Here, Officer Grabski testified that he wanted to have a conversation with Fullerton about
“littering on the streets.” This conversation occurred while Deputy Olson was running the names
through the database. Thus, Officer Grabski’s conversation with Fullerton was reasonably
related to the circumstances justifying the stop and did not extend the length of the stop.
During Officer Grabski’s conversation with Fullerton, Deputy Olson discovered the drug
pipe. And upon discovery of the drug pipe, the officers had sufficient suspicion to extend the
stop under Terry. Thus, Erickson’s arguments fail. Because the majority reaches the correct
result, I respectfully concur.
Worswick, J.
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