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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) No. 80417-1-I

)

 Respondent, ) DIVISION ONE

)

 v. )

)

CARLBERG, JUSTIN ALLEN, ) UNPUBLISHED OPINION

DOB: 09/30/1991, )

)

 Appellant. )

BOWMAN, J. — Justin Allen Carlberg appeals his conviction for possession 

of methamphetamine with intent to manufacture or deliver, arguing the trial court 

should have suppressed drugs seized by the police during an unlawful detention. 

We affirm.

FACTS

Shortly after 8:00 p.m. on February 2, 2017, Carlberg walked into the 

Snohomish Rite Aid store carrying a backpack. He dropped the bag near the 

store entrance and proceeded through the employee stock room into a bathroom. 

He stayed in the bathroom for about 20 minutes. The store manager called 911 

after she knocked on the door and “asked him to leave several times.” 

Snohomish County Sheriff’s Office deputies responded. The manager told 

them that Carlberg “would not comply with her multiple requests to leave” and 

she “wished to have him trespassed.” She told the deputies that she confirmed 

somebody was in the bathroom “because there is a grate on the bottom of the 
No. 80417-1-I/2

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door that allows you to see basically just the floor in there,” and she “could see 

the same male’s feet inside the door.”

The deputies approached the bathroom door and saw through the grate 

that someone was pacing inside the bathroom. They knocked and directed the 

person to come out.1 They had to ask “several times.” When the door opened, 

they “immediately recognized” Carlberg from previous contacts, including 

trespass complaints.

2

 They also knew from experience that Carlberg often 

carried weapons, including “knives and needles.” Carlberg was “profusely 

sweating,” red faced, and looked “exhausted.” The deputies recognized these as 

signs of recent drug use; in particular, heroin. 

The deputies asked Carlberg if he was armed. Carlberg admitted to 

having a knife in his pocket and “used needles.” The deputies conducted a 

“protective frisk” by patting down his clothing “to make sure there were no 

weapons.” The deputies first discovered a knife and then a “hard boxy object”

about the size of a cell phone. Deputy Christopher Johnson testified that such an 

object could be a folding firearm, an electronic shock device, or pepper spray. 

When they removed the object, deputies saw that it was a digital scale with 

“brown tar residue” on the outside, which they suspected was heroin. The 

deputies arrested Carlberg for possession of drug paraphernalia. They continued 

searching Carlberg and found used hypodermic needles with what appeared to 

 

1 Deputy Evan Twedt testified, “I knocked on the door and announced our presence, it’s 

the police and that they need to come out.” 

2 Deputy Twedt testified that he had personally “trespassed [Carlberg] from most of [the] 

major businesses around Snohomish” and “believe[d] that he had been trespassed from Rite Aid” 

as well.
No. 80417-1-I/3

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be blood and trace amounts of heroin inside, as well as “several baggies”

containing suspected methamphetamine. Later testing confirmed the white 

substance in the baggies was methamphetamine.

The State charged Carlberg with possessing a controlled substance with 

intent to manufacture or deliver. Carlberg moved to suppress the 

methamphetamine and paraphernalia under CrR 3.6, arguing that the deputies

did not have reasonable grounds to seize and detain him. The court denied his 

motion. 

Carlberg stipulated to a bench trial based on agreed documentary 

evidence. The trial court found him guilty as charged. The court granted 

Carlberg’s request for a residential drug-offender sentencing alternative (DOSA). 

But Carlberg violated the conditions of his sentence, so the court revoked the 

DOSA and imposed a standard-range sentence of 16 months’ confinement. 

Carlberg appeals. 

ANALYSIS

Carlberg argues the trial court should have suppressed evidence 

discovered during the deputies’ “protective frisk” because the deputies unlawfully 

seized and detained him. We disagree.

In reviewing a denial of a motion to suppress, we review the trial court’s 

findings of fact for substantial evidence and the court’s conclusions of law de 

novo. State v. Fuentes, 183 Wn.2d 149, 157, 352 P.3d 152 (2015). We treat 

unchallenged factual findings as verities on appeal3 and consider whether those 

 

3 Carlberg does not challenge any of the trial court’s findings of fact.
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findings support the conclusions of law. State v. Allen, 138 Wn. App. 463, 468, 

157 P.3d 893 (2007) (citing State v. Acrey, 148 Wn.2d 738, 745, 64 P.3d 594 

(2003); State v. Vickers, 148 Wn.2d 91, 116, 59 P.3d 58 (2002)). The 

constitutionality of a warrantless detention is a question of law we review de 

novo. State v. Gatewood, 163 Wn.2d 534, 539, 182 P.3d 426 (2008).

4

 

The Washington Constitution prohibits warrantless seizures unless they 

fall within narrowly drawn exceptions. Art. I, § 7; State v. Arreola, 176 Wn.2d 

284, 292, 290 P.3d 983 (2012). A Terry investigative stop is one such exception,

allowing an officer to detain a person briefly for questioning if the officer has 

reasonable suspicion that the person is, or is about to be, engaged in criminal 

activity. Terry v. Ohio, 392 U.S. 1, 20-21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 

(1968); Fuentes, 183 Wn.2d at 158; State v. White, 97 Wn.2d 92, 105, 640 P.2d 

1061 (1982). We consider an officer’s training and experience when determining 

the reasonableness of a Terry stop. State v. Glover, 116 Wn.2d 509, 514, 806 

P.2d 760 (1991) (citing State v. Mercer, 45 Wn. App. 769, 774, 727 P.2d 676 

(1986); State v. Samsel, 39 Wn. App. 564, 570-71, 694 P.2d 670 (1985)).

A person commits the crime of criminal trespass in the second degree if he 

“knowingly enters or remains unlawfully in or upon the premises of another under 

circumstances not constituting criminal trespass in the first degree.” RCW 

9A.52.080(1). “A person ‘enters or remains unlawfully’ in or upon premises when 

he or she is not then licensed, invited, or otherwise privileged to so enter or 

remain.” RCW 9A.52.010(2); State v. Green, 157 Wn. App. 833, 844, 239 P.3d 

 

4 Carlberg does not challenge the constitutionality or scope of the “protective frisk,” so we 

do not reach that issue.
No. 80417-1-I/5

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1130 (2010).5 And a person remains unlawfully in a building by remaining after a 

license previously extended is “specifically revoked” by someone with authority 

over the premises. State v. Davis, 90 Wn. App. 776, 780-81, 954 P.2d 325 

(1998).

Carlberg argues deputies unlawfully detained him because “he had [n]ever 

been warned off of [the property] in the past” and the manager did not “demand” 

for him to leave, she merely “requested” him to leave. He cites State v. Finley, 97 

Wn. App. 129, 138, 982 P.2d 681 (1999), arguing that the State must show 

Carlberg had knowledge he was remaining unlawfully on the premises before 

police could detain him. 

In Finley, a bartender told a patron who was harassing his girlfriend to 

leave several times, but the patron kept returning, even after police officers 

responded and told him he was not allowed to go back inside. Finley, 97 Wn. 

App. at 131-32. Finley appealed his conviction for criminal trespass in the 

second degree, arguing the State produced insufficient evidence that his right to 

remain in a public establishment had been lawfully revoked. Finley, 97 Wn. App.

at 133, 137-38. Division Three of our court agreed with Finley that at trial, the 

State had the burden to disprove the statutory defense that “ ‘[t]he premises were 

at the time open to members of the public and the actor complied with all lawful 

conditions imposed on access to or remaining in the premises.’ ” Finley, 97 Wn. 

App. at 1376(quoting RCW 9A.52.090(2)). 

Carlberg conflates the State’s burden to convict at trial with the reasonable 

 

5

“ ‘Premises’ includes any building.” RCW 9A.52.010(3). 

6 Alteration in original. 
No. 80417-1-I/6

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suspicion standard used to assess a lawful seizure. Police officers “need not be 

able to prove all elements of a crime beyond a reasonable doubt before [they] 

can stop an individual to investigate a suspected crime.” State v. Duncan, 146 

Wn.2d 166, 179, 43 P.3d 513 (2002). Nor must an officer determine the absence

of a defense to a crime before an investigative seizure. State v. Guzman-Cuellar, 

47 Wn. App. 326, 331, 734 P.2d 966 (1987). 

Here, deputies responded to a 911 call of a suspicious male who locked 

himself inside the Rite Aid bathroom for 20 minutes and “would not comply with 

[the manager’s] multiple requests to leave.” Whether the manager “demanded,”

“requested,” or “told” him to leave is immaterial because all are communications

to Carlberg that his presence is unwanted. And when deputies saw Carlberg, 

they recognized him as someone they had trespassed from various local 

businesses. Sufficient facts supported reasonable suspicion to seize and detain 

Carlberg for investigation of criminal trespass.

We hold that the trial court did not err in denying Carlberg’s motion to 

suppress evidence obtained during a lawful detention. We affirm.

 

WE CONCUR: