IN THE SUPREME COURT OF THE STATE OF WASHINGTON 

STATE OF WASHINGTON, 

Respondent, 

v. 

CHAD EDWARD DUNCAN, 

Petitioner. 

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No. 90188-1 

EnBanc 

Filed --------

GONZALEZ, J.-This case presents two questions: (1) whether Chad 

Duncan can challenge the legal financial obligations (LFOs) imposed by the 

trial court for the first time on appeal and (2) whether the police properly 

searched his car for a gun after a drive-by shooting. We answer yes to both 

questions, affirm Duncan's conviction, and remand for resentencing with 

proper consideration of his ability to pay LFOs. 

FACTS 

A little after midnight in Yakima one summer night in 2009, someone 

in a car shot into a home, grazing Kyle Mullins' head. Other people in the 

home called 911 for medical assistance and to report the shooting. Callers 
State v. Duncan, No. 90188-1 

described the car as white and possibly a Subaru or Impala. Officers were 

dispatched and stopped Duncan's white Ford Taurus. Officers removed 

Duncan and his two passengers from the car at gunpoint, ordered them to the 

ground, handcuffed them, and put them in separate police cars. Without a 

warrant, officers opened the doors and found shell casings on the floor and a 

gun between the front passenger seat and the door. One officer removed the 

gun and placed it into an evidence bag in his own patrol car. The passengers 

told the police that Duncan had fired from the car and tossed the gun on the 

front floorboards. After the car was towed to a police annex, police obtained 

a warrant and made a more thorough search. 

Duncan was charged with six counts of first degree assault and one 

count of unlawful possession of a firearm. Duncan moved to suppress the 

evidence and confessions that flowed from the traffic stop on several 

grounds, including that the police had insufficient grounds to stop him and 

that their initial warrantless search of his car was improper. At the pretrial 

suppression hearing, held a year and a half after the events of that summer 

night, the judge found that the stop was justified and that the search was 

reasonable, and denied the motion. 

The jury returned guilty verdicts on all charges and found by special 

verdicts that Duncan was armed with a firearm. The judge sentenced 

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State v. Duncan, No. 90188-1 

Duncan to 1,159 months of incarceration, the top ofthe standard range. 

Duncan's projected release date is March 26, 2099. Mot. & Affidavit To 

Suppl. R., Ex. A at 12. With no discussion and over no objection, the trial 

judge ordered Duncan to pay $2,905.54 in restitution, costs, assessments, 

and fines; $50 per day toward the cost of incarceration for the duration of his 

prison sentence; and the costs of his medical care. The State acknowledges 

that there was no inquiry into Duncan's ability to pay at sentencing. Am. Br. 

ofResp't at 24. Assuming Duncan does not accrue good time and incurs no 

medical expenses, amici calculates that the principal alone of his LFOs will 

be nearly two million dollars. Amici Curiae Br. of ACLU1 of Wash. et al. at 

l. This does not include any appellate costs that may be imposed under 

RCW 10.73.160(1). 

For the first time on appeal, Duncan challenged the trial court's 

imposition of the LFOs on the grounds that the record did not support a 

finding he had or would have any likelihood of being able to pay them. Br. 

of Appellant at 26-27. Despite the State's suggestion that the matter be 

remanded for a hearing on Duncan's ability to pay, the Court of Appeals 

concluded "that ability to pay LFOs is not an issue that defendants 

overlook--it is one they reasonably waive" and declined to consider it. 

1 American Civil Liberties Union. 

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State v. Duncan, No. 90188~1 

State v. Duncan, 180 Wn. App. 245, 253, 327 PJd 699 (2014). The Court 

of Appeals did not consider whether Duncan himself had reasonably waived 

a challenge to the LFOs. See id. It largely affirmed. Id. at 247.2 

We stayed consideration of Duncan's petition for review pending our 

decision in State v. Blazina, 182 Wn.2d 827, 344 P.3d 680 (2015). Order to 

Stay, State v. Duncan, No. 90188-1 (Wash. July 9, 2014). After a mandate 

was issued in Blazina, we granted review. State v. Duncan, 183 Wn.2d 

1013, 353 PJd 641 (2015). 

ANALYSIS 

I.LFOs 

The imposition and collection ofLFOs have constitutional 

implications and are subject to constitutional limitations. State v. Barklind, 

87 Wn.2d 814, 817, 557 P.2d 314 (1976) (citing Fuller v. Oregon, 417 U.S. 

40, 44-47, 94 S. Ct. 2116, 40 L. Ed. 2d 642 (1974)). A constitutionally 

permissible system that requires defendants to pay court ordered LFOs must 

meet seven requirements: 

"1. Repayment must not be mandatory; 

"2. Repayment may be imposed only on convicted defendants; 

2 The Court of Appeals remanded to the trial court to strike a term of community custody 

the parties agreed was not statutorily authorized. Duncan, 180 Wn. App. at 247. This 

issue is not before us. 

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State v. Duncan, No. 90188-1 

"3. Repayment may only be ordered if the defendant is or will be able 

to pay; 

"4. The financial resources of the defendant must be taken into 

account; 

"5. A repayment obligation may not be imposed if it appears there is 

no likelihood the defendant's indigency will end; 

"6. The convicted person must be permitted to petition the court for 

remission of the payment of costs or any unpaid portion; 

"7. The convicted person cannot be held in contempt for failure to 

repay if the default was not attributable to an intentional refusal to 

obey the court order or a failure to make a good faith effort to make 

repayment." 

State v. Curry, 118 Wn.2d 911, 915-16, 829 P.2d 166 (1992) (quoting State 

v. Eisenman, 62 Wn. App. 640, 644 n.lO, 810 P.2d 55, 817 P.2d 867 (1991) 

(citing Barklind, 87 Wn.2d at 814)). 3 The constitution does not require that 

the trial court enter formal findings, though of course it is a good practice 

and helpful on review. See id. at 915-16 (quoting Eisenman, 62 Wn. App. at 

644 n.1 0). Had Duncan objected at trial to the LFOs sought by the State, the 

3 We recognize that the legislature has designated some ofthese fees as mandatory. E.g., 

RCW 7.68.035 (victim assessment); RCW 43.43.7541 (DNA (deoxyribonucleic acid) 

collection fee); RCW 10.82.090(2)(d) (effectively making the principal on restitution 

mandatory). Others have been treated as mandatory by the Court of Appeals. State v. 

Lundy, 176 Wn. App. 96, 102, 308 P.3d 755 (2013) (holding that the filing fee imposed 

by RCW 36.18.020(2)(h) is mandatory and courts have no discretion to consider the 

offender's ability to pay). While we have not had occasion to consider the 

constitutionality of all of these statutes, we have found that the victim penalty assessment 

statute was not unconstitutional on its face or as applied to the defendants in the case 

because there were sufficient safeguards to prevent the defendants from being sanctioned 

for nonwillful failure to pay. See Curry, 118 Wn.2d at 917. 

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State v. Duncan, No. 90188-1 

trial court would have been obligated to consider his present .and future 

ability to pay before imposing the LFOs. Id. 

However, Duncan did not object at trial, and thus the first question we 

must decide is whether we should reach the issue. We recently noted that "a 

party generally waives the right to appeal an error unless there is an 

objection at trial." State v. Kalebaugh, 183 Wn.2d 578, 583, 355 P.3d 253 

(2015) (citing RAP 2.5(a)). But while appellate courts "may refuse to 

review any claim of error which was not raised in the trial court," they are 

not required to. RAP 2.5(a). Recently, in Blazina, we chose to exercise "our 

own RAP 2.5 discretion [to] reach the merits and hold that a trial court has a 

statutory obligation to make an individualized inquiry into a defendant's 

current and future ability to pay before the court imposes LFOs." 182 

Wn.2d at 830. 

We reached this issue in Blazina because we found ample and 

increasing evidence that unpayable LFOs "imposed against indigent 

defendants" imposed significant burdens on offenders and our community, 

including "increased difficulty in reentering society, the doubtful 

recoupment of money by the government, and inequities in administration.'? 

!d. at 835-87 (citing extensive sources). Given that, and given the fact that 

the trial courts had not made an individualized inquiry into the defendants' 

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State v. Duncan, No. 90188-1 · 

ability to pay before imposing the LFOs, we remanded to the trial court for 

new sentencing hearings. Id. at 839. 

Consistent with our opinion in Blazina and our other cases decided 

since then, we remand to the trial court for resentencing with proper 

consideration of Duncan's ability to pay LFOs. See id. at 830; see also State 

v. Marks, 185 Wn.2d 143, _ P.3d _ (2016); State v. Licon, noted at 184 

Wn.2d 1010, 359 P.3d 791 (2015); State v. Leonard, 184 Wn.2d 505, 358 

P.3d 1167 (2015) (per curiam); State v. Vansycle, noted at 183 Wn.2d 1013, 

353 P.3d 634 {2015); State v. Cole, 183 Wn.2d 1013, 353 P.3d 634 (2015). 

II. Warrantless Protective Sweep 

We turn now to whether the warrantless search of Duncan's vehicle 

was lawful. Briefly, after Duncan's car was stopped and its three occupants 

were handcuffed in the back of separate police cars, the police "walked up to 

make sure there was no other occupants hiding in the vehicle." 1 CD 

Proceedings (Feb. 14, 2011) at 71. No one else was found, but one officer 

testified that he could see a gun on the floorboards. I d. at 72. Another 

testified that he saw shell casings and decided to search the car in order "to 

make sure we .weren't going to [be] towing a car with a handgun inside that 

could possibly discharge." Jd. 

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State v. Duncan, No. 90188-1 

Duncan unsuccessfully moved to suppress the gun, shell casings, and 

passenger statements that flowed from the stop. However, without the 

benefit of State v. Snapp, 174 Wn.2d 177, 275 P.3d 289 (2012), the judge 

found the search and seizure was justified to find evidence of the crime of 

arrest. The judge also found the sweep of the car and the seizure of the gun 

were lawful because of the danger posed by an unsecured weapon in a car as 

it is being towed. Duncan made several challenges to the judge's CrR 3.6 

ruling below that he does not renew at this court. Here, he argues that the 

search exceeded the permissible bounds of a protective sweep given that he 

and his passengers were already handcuffed and secured in separate patrol 

vehicles. Pet. for Review at 10. 

"'As a general rule, warrantless searches and seizures are per se 

unreasonable."' State v. Hendrickson, 129 Wn.2d 61, 70, 917 P.2d 563 

(1996) (quoting State v. Houser, 95 Wn.2d 143, 149, 622 P.2d 1218 (1980)). 

Nonetheless, there are a few "jealously and carefully drawn 

exceptions" to the warrant requirement which "provide for those cases 

where the societal costs of obtaining a warrant, such as danger to law 

officers ofthe risk of loss or destruction of evidence, outweigh the 

reasons for prior recourse to a neutral magistrate." 

Houser, 95 Wn.2d at 149 (internal quotation marks omitted) (quoting 

Arkansas v. Sanders, 442 U.S. 753, 759, 99 S. Ct. 2586, 61 L. Ed. 2d 235 

(1979)). The State bears the burden of showing that the search and seizure 

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State v. Duncan, No. 90188-1 

was supported by a warrant or an exception to the warrant requirement. 

Hendrickson, 129 Wn.2d C~-t 71 (citing State v. Johnson, 128 Wn.2d 431, 44 7, 

909 P.2d 293 (1996)); Snapp, 174 Wn.2d at 188 (citing State v. Kirwin, 165 

Wn.2d 818, 203 P.3d 1044 (2009)). The fruits of an unconstitutional search 

and seizure must be suppressed. State v. Ladson, 138 Wn.2d 343, 359, 979 

P.2d 833 (1999) (citing State v. Kennedy, 107 Wn.2d 1, 4, 726 P.2d 445 

(1986)). 

Prior to Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 

485 (2009), the search here would have passed constitutional muster. But in 

the wake of Gant, we reexamined the search incident to arrest exception and 

found it did not justify warrantless searches of vehicles for evidence of the 

crime of arrest once the vehicles' occupants are detained in police cars. 

Snapp, 17 4 Wn.2d at 197, 201. Thus, the search here cannot be justified on 

the first ground found by the trial court. 

In the alternative, the State argues that the seizure of the gun was 

justified under the "plain view" exception to the warrant requirement. 

Suppl. Br. ofResp't at 7 (boldface omitted). However, the trial judge's 

order indicates he did not believe the officers could see the gun from outside 

the vehicle and there is nothing in this record that suggests the officers 

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State v. Duncan, No. 90188-1 

needed to open the car doors to sweep the vehicle for suspects.4 We find the 

plain view exception is not available under these facts. 

The State also argues that this search was "essentially identical to an 

inventory search." Jd. at 8. This argument is also not well presented by the 

facts. Inventory searches are authorized after vehicles are lawfully 

impounded. E.g., State v. Tyler, 177 Wn.2d 690, 701, 302 P.3d 165 (2013) 

(citing Houser, 95 Wn.2d at 154). There is nothing in the trial judge's CrR 

3.6 order or the officers' testimony at the hearing that suggests the vehicle 

had actually been impounded at the time the vehicle was searched and the 

gun was seized. 

As amici curiae, the Washington Association of Prosecuting 

Attorneys (WAPA) and the Washington State Patrol (WSP) ask us to adopt a 

rule that would authorize officers to search a car whenever there is 

reasonable suspicion it contains a firearm and the vehicle is to be released to 

any third party. WSP's Amicus Curiae Br. at 5, 7; Br. of Amicus Curiae 

WAPA at 7-8. We may, but usually do not, reach arguments raised only by 

amicus. Dragons layer, Inc. v. Wash. State Gambling Comm 'n, 139 Wn. 

4 The "State had prepared the order, which had stated the car contained "an unsecured 

firearm which was visible from outside the vehicle presented a safety risk to the officers 

and a danger to anyone in the area of accidently discharging while the car was being 

towed since a car is frequently lifted up and dropped and moved around." Clerk's Papers 

at 207. The trial judge struck out the words "which was visible from outside the vehicle." 

I d. 

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State v. Duncan, No. 90188-1 

App. 433, 442, 161 P.3d 428 (2007) (citing Noble Manor Co. v. Pierce 

County, 133 Wn.2d 269, 272 n.1, 943 P.2d 1378 (1997)). While we decline 

to adopt so broad a rule, we find the amici's briefings helpful. 

As the trial court noted, "[T]he presence of an unsecured firearm 

presented a safety risk to the officers and a danger to anyone in the area of 

accidently discharging while the car was being towed since a car is 

frequently lifted up and dropped." CP at 207 (stricken language omitted). A 

warrantless search may be justified when officers have reasonable grounds 

to believe that "objects likely to burn, explode or otherwise cause harm" 

need to be secured. See State v. Downey, 53 Wn. App. 543, 544-45, 768 

P.2d 502 (1989) (citing Robert Utter, Survey of Washington Search and 

Seizure Law: 1988 Update, 11 U. PUGET SOUND L. REv. 421, 538-39 

(1988)). Accordingly, we hold that under the community caretaking 

exception to the warrant requirement, officers may make a limited sweep of 

a vehicle when (1) there is reasonable suspicion that an unsecured weapon is 

in the vehicle and (2) the vehicle has or shortly will be impounded and will 

be towed from the scene. See id. 

We caution, however, that the community caretaking exception is a 

strictly limited exception to the warrant requirement. State v. Kinzy, 141 

Wn.2d 373, 385, 5 P.3d 668 (2000) (citing Cady v. Dombrowski, 413 U.S. 

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State v. Duncan, No. 90188-1 

433, 441, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973)). It may not be used as a 

pretext for an investigatory search. Houser, 95 Wn.2d at 153 (citing State v. 

Hardman, 17 Wn. App. 910, 913, 567 P.2d 238 (1977)). It will only rarely 

justify intrusion into a private place or vehicle after an arrest. See Kinzy, 

141 Wn.2d at 384-86; see also Charles W. Johnson & Debra L. Stephens, 

Survey of Washington Search and Seizure Law: 2013 Update, 36 SEATTLE 

U.L. REV. 1581, 1703-04 (2013) (describing cases). In this case, we 

recognize that it is troubling that the trial judge denied the suppression 

motion in part because he found the search was justified in order to find 

evidence of the crime given-making it difficult to $ay that the officers were 

not motivated to find evidence. However, given the facts of this case and 

the fact that the sweep of the vehicle occurred before our opinion in Snapp, 

174 Wn.2d 177, was announced, we are confident that the desire to remove 

an unsecured gun from the vehicle was not here used as a pretext for an 

otherwise unlawful search. See Houser, 95 Wn.2d at 153 (citing Hardman, 

17 Wn. App. at 913); see also Ladson, 138 Wn.2d at 353. 

CONCLUSION 

We find the LFOs imposed on Duncan are indistinguishable from 

• those imposed on Blazina and remand for resentencing with proper 

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State v. Duncan, No. 90188-1 

consideration of his ability to pay. We conclude that under these facts, the 

limited search of the vehicle was lawful and affirm Duncan's conviction. 

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State v. Duncan, No. 90188-1 

WE CONCUR: 

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