INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE THE STATE OF WASHINGTON, Respondent,

v. MOHAMED A. AHMED, Appellant. No. 71608-5-1
ORDER GRANTING MOTION FOR RECONSIDERATION AND WITHDRAWING OPINION AND SUBSTITUTING NEW OPINION 

### AppellantMohamedA. Ahmedfiled amotion to reconsider theopinion 

### filed onAugust 17,2015. The Statefiled an answer to themotion. The panel has determined that appellant'smotion forreconsideration should be granted and 

### theopinionfiled onAugust 17, 2015 withdrawn. Asubstituteopinionwill befiled. Now, therefore, it is hereby 

### ORDERED that appellant's motion for reconsideration is granted and the 

### opinionfiled onAugust 17, 2015 shall bewithdrawn, and anewopinion shallbe
filed. 

# DATEDthis QS dayof."foCMjArU ,2016. f 

# ^cfcCGt. C-'l

-CT7 CD COIN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE THE STATE OF WASHINGTON, Respondent,

v. MOHAMEDA. AHMED, Appellant. No. 71608-5-1

UNPUBLISHED OPINION

FILED: January 25, 2016 r-o

a CO

Schindler, J. — Mohamed A. Ahmed appeals his conviction oftheft inthe third degree. Ahmed asserts the trial court erred in denying his motion to suppress because the police exceeded the scope of a lawful protective frisk. The State agrees that during a frisk for weapons, the officer partially removed a small wine bottle from Ahmed's pocket and examined it. However, the State contends the frisk did not exceed the scope of a protective frisk because the officer removed the bottle based upon a reasonable beliefthat itmight be a weapon. Because the record does not supportthe State's argument and the trial court made no such finding, we reverse. FACTS On August 21, 2013, Seattle Police Officer Lloyd Harris responded to a report of
a robbery at a Seattle 7-Eleven store. When Officer Harris arrived atthe 7-Eleven, the
store clerk told Officer Harris that a man stole a number of small wine bottles. The storeNo. 71608-5-1/2 

### clerkdescribed the man as a "black male, bald, wearing a white shirt, black shirt underneath, and bluejeans." The clerk said thatwhen he confronted the man about paying for the wine bottles, the man threatened him with a small knife that he had in his 

### front pants pocketand left. The clerk said the man ran away inthe direction ofthe bowling alley. The bowling alley is kitty-corner and about 100 yards from the 7-Eleven. 

### Minutes later, Officer Harris saw a man inthe bowling alley parking lot who "matched perfectly" the clerk's description ofthe man who stole the wine bottles. Officer Harris asked the man, later identified as Mohamed A. Ahmed, "ifhe would come talk." Ahmed appeared intoxicated and repeatedly asked why Officer Harris wanted to talk to him. Because itwas "probably likely"thatAhmed was carrying a knife, Officer Harris "kept [his] distance" until a second officer arrived. When Seattle Police OfficerJacob Leenstra arrived, Officer Harris placed Ahmed in handcuffs and conducted a protective frisk to search for "a weapon" or "sharp objects." Based on the information thatAhmed had a knife in his front pocket, Officer Harris "started a frisk on the left side of [Ahmed's] body as the suspect inthe robbery
was supposedly armed with a knife." Officer Harris said that as soon as he "wentto [Ahmed's] front left pocket[,] there was a chilled, sweating, small bottle of wine" inthat pocket. Officer Leenstra placed Ahmed under arrestfor robbery and read Ahmed his 

### Miranda1 rights. After placing Ahmed under arrest, Officer Harris and Officer Leenstra conducted
a search incidentto arrest and removed a bottle ofwine from each of his front pockets and a third bottlefrom his back pants pocket. The police officers did not recover a knife. 1Miranda v. Arizona. 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).No. 71608-5-1/3 

### Ahmed denied having been at the 7-Eleven store. Ahmed told the officers he purchased the wine at another store for $20. The 7-Eleven store clerk identified Ahmed
as the person who took the wine bottles and then threatened him. 

### The State charged Ahmed with robbery inthe second degree. Ahmed 

### represented himselfpro se. Before trial, Ahmed filed a motion to suppress his custodial statements and the small wine bottles seized after his arrest. Ahmed argued the police 

### officers exceeded the scope of a lawfulprotective frisk by removing one ofthe small wine bottles from his front pocket. Ahmed also claimed he was arrested without 

### probable cause, and the wine bottles and his custodial statements were products of an unlawful arrest. Officer Harris and Officer Leenstra testified atthe suppression hearing. Officer 

### Harris testified that he immediately told OfficerLeenstra "therewas a bottle of wine" and 

### stopped thefrisk. The court also admittedinto evidence audio and video footage of the arrestfrom the dashboard cameras inthe patrol cars. The trialcourtdenied Ahmed's motion to suppress. 

### During his testimony attrial, Ahmed admitted he leftthe 7-Eleven store with wine bottles that he did not pay for but onlybecause he inadvertently left his wallet at the 

### bowling alley. Ahmed said he intended to return to the storeto pay. Ahmed denied threatening the clerkwith a knife. A juryfound Ahmedguilty of the lesser-included crime oftheft inthe third degree, a gross misdemeanor.No. 71608-5-1/4
ANALYSIS 

### Ahmed seeks reversal arguing the trial court erred in denying his motion to suppress the wine bottles the police seized after placing him underarrest. Ahmed asserts the frisk exceeded the scope of a protective search forweapons. The Fourth Amendment ofthe United States Constitution prohibits an unreasonable search and seizure. Article I, section 7 ofthe Washington Constitution 

### prohibits government intrusion upon private affairs without authority of law. State v. Chacon Arreola. 176 Wn.2d 284, 291, 290 P.3d 983 (2012). Because article I, section 7 grants greater protection to individual privacy rights than the Fourth Amendment, we analyze the issue Ahmed presents underthe Washington Constitution. State v. Russell, 180Wn.2d860, 867 n.1, 330 P.3d 151 (2014). Awarrantless seizure is presumptively unreasonable. State v. Z.U.E., 183 Wn.2d 610, 617, 352 P.3d 796 (2015). The State bears the burden ofestablishing the seizure falls within one ofthe carefully drawn exceptions to the warrant requirement. 

### Z.U.E., 183 Wn.2d at 617. One exception is a brief investigatory detention—a Terry2 stop. Z.U.E., 183 Wn.2d at 617. During a Terry stop, a police officer is entitled to conduct a limited search ofthe outer clothing of a person for weapons that might be used to assault the officer. Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). "The purpose ofthis limited search is notto discover evidence of a crime, butto allow the officerto pursue his investigation withoutfear." State v. Hudson, 124 Wn.2d 107, 112, 874 P.2d 160(1994).

2Terry v. Ohio. 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).No. 71608-5-1/5 

### Ahmed claims Officer Harris exceeded the scope of a permissiblefriskbecause 

### he felt an item he knewwas not a weapon and removed the wine bottle from his pocket "toexamine it in detail." Ahmed relies on patrol cardashboard camera video to argue that after Officer Harris felt a small wine bottle inAhmed's front pocket, he continued to search forevidence by lifting the bottle out ofthe pocket. Ahmed contends the record supports no other interpretation ofthe evidence. 

### Inthe video, Ahmed's back is toward the camera. Officer Harris is standing in front ofAhmed and facing him. Therefore, onlyAhmed's back and, at times, Officer Harris's face are visible from the angle ofthe camera. The video does not show either Officer Harris's hands or Ahmed's front pocket. The video does show Officer Leenstra 

### moving Ahmed to the front ofthe patrol cara few minutes afterthe arrest and removing three wine bottles from Ahmed's pockets. The video also includes the officers' commentsjust before the arrestthat "you have a bottle ofwine inyour pocket" and the wine bottle is "the exact one thatwas stolen" from the 7-Eleven store. Ahmed insists these comments establish the officers removed and examined the wine bottle during the frisk. This is notthe only reasonable inference. Nonetheless, the State unequivocally "agrees" that based on the testimony and the video evidence atthe suppression hearing, Officer Harris "looked inAhmed's pocket and lifted up the bottle ofwine at least partly out ofthe pocket as part ofthe frisk"
to discover the wine. However, the State relies on a commentthe trial court made during the oral ruling to argue that because a wine bottle is a potential weapon, the officers were justified in removing the bottle during the protective frisk. In its oral ruling on the motionNo. 71608-5-1/6 

### to suppress, the court noted inpassing thatwine bottles are "arguably" potential weapons that "certainly could be used to hitsomebody," but the court specifically stated that "[n]oone has mentioned this, including the officers." The court did not find Officer Harris removed the bottle because itwas a potential weapon. And there was no testimony suggesting Officer Harris believed the bottle was a potential or actual
weapon. We also note the trial court's oral ruling has no binding or final effect unless it is 

### formally incorporated into the written findings or written orders. See State v. Dailey, 93 Wn.2d 454, 458-59, 610 P.2d 357 (1980). The written findings do not state that Officer Harris removed the wine bottle because he believed itwas a potential weapon. The findings state, in pertinent part: After placing Mr. Ahmed in handcuffs, Officers Harris and Leenstra frisked him for weapons. During the frisk they felt hard, cylindrical objects in his pockets thatwere cold to the touch. These objects were then identified as wine bottles and matched the description ofthe stolen property provided 

### bythe victim at 7-Eleven.[3] The conclusions of law state, in pertinent part: Itwas reasonable for the officers to frisk [Ahmed] because, based on the information thatthey had received, they had good reason to thinkthat he might be armed. Once the wine bottles were discovered in Mr. Ahmed's pockets during the frisk, officers had probable cause to arrest. Because the State agrees the record must be interpreted inthe mannerAhmed suggests and the State erroneously relies on a factual finding thatthe trial courtdid not,

3As Ahmed correctly observes, the evidence demonstrates Officer Harris conducted the frisk while Officer Leenstra only observed, and Officer Harris detected one bottle inAhmed's front pocket not multiple bottles. To the extentthe court's finding states otherwise, the finding is not supported by substantial evidence.No. 71608-5-1/7 and could not, make, we reverse Ahmed's conviction and remand forfurther 

### proceedings.4 

# ^OmWOQWE CONCUR: 

# j3?c^£J:

4Accordingly, we need notaddress Ahmed's argumentthat the court erred in admitting his custodial statements.