IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, Respondent, 

### v. CHAD EDWARD DUNCAN, Petitioner. ) ) ) ) ) ) ) ) ) ) No. 90188-1
EnBanc
Filed

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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) whetherthe policeproperly 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 ofhis ability to pay LFOs. FACTS A little after midnight in Yakima one summernight in 2009, someone in a car shot into a home, grazing Kyle Mullins' head. Other people inthe home called 911 for medical assistance and to report the shooting. CallersState 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, orderedthem to the ground, handcuffed them, and putthem in separate police cars. Without a warrant, officers opened the doors and found shell casings onthe floor and a gun betweenthe front passenger seat and the door. One officer removed the gun andplaced it into an evidence bag inhis ownpatrol car. The passengers told the police that Duncan had fired from the car and tossedthe gun on the front floorboards. After the car was towed to apolice annex, police obtained
a warrant and made a more thorough search. Duncan was charged with six counts offirst degree assault and one count ofunlawful possession ofa firearm. Duncanmovedto 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 ofhis car was improper. Atthe pretrial suppressionhearing, held a year and ahalfafterthe events ofthat summer night, thejudge found that the stop wasjustified and that the search was reasonable, and denied the motion. Thejuryreturned guilty verdicts on all charges and found by special verdicts that Duncan was armed with a firearm. Thejudge sentenced

2State v. Duncan, No. 90188-1 Duncanto 1,159 months ofincarceration, the top ofthe standardrange. Duncan's projectedrelease 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 Duncanto pay $2,905.54 in restitution, costs, assessments, and fines; $50 per day toward the cost ofincarceration for the duration ofhis prison sentence; and the costs ofhis 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 goodtime and incurs no medical expenses, amici calculates thatthe principal alone ofhis LFOs will be nearly two million dollars. Amici Curiae Br. ofACLU1ofWash. et al. at l. This does not include any appellate costs that maybe imposedunder RCW 10.73.160(1). Forthe first time on appeal, Duncan challengedthe trial court's imposition ofthe LFOs onthe grounds that the record did not support a finding he had or would have any likelihood ofbeing able to paythem. Br. ofAppellant at 26-27. Despite the State's suggestionthatthe matterbe remanded for a hearing onDuncan's ability to pay, the Court ofAppeals concluded "that ability to payLFOs is not an issue that defendants overlook--it is one they reasonably waive" and declined to consider it.

1American Civil Liberties Union. 3State v. Duncan, No.**90188~1** State v. Duncan, 

### 180 Wn. App. 245, 253, 327 PJd 699 (2014). The Court ofAppeals did not consider whether Duncan himselfhadreasonably waived
a challenge to the LFOs. See id. It

### largely affirmed. Id. 

### at 247.2 

### We stayed consideration ofDuncan's petition for review pending our decision in State v. Blazina, 

### 182 Wn.2d 827, 344 P.3d 680 (2015). Orderto 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 ofLFOshave constitutional implications and are subjectto 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 thatrequires defendants to pay court orderedLFOs must meet sevenrequirements: "1. Repayment mustnot be mandatory; "2. Repayment may be imposed only on convicted defendants;

2 The Court ofAppeals remanded to the trial court to strike a term ofcommunity custody the parties agreed was not statutorily authorized. Duncan, 180 Wn. App. at 247. This issue is notbefore us. 4State v. Duncan, No. 90188-1 "3. Repayment may only be ordered ifthe defendant is or will be able to pay; "4. The financial resources ofthe defendant mustbe taken into account; "5. A repayment obligation may notbe imposed ifit appears there is no likelihood the defendant's indigency will end; "6. The convicted person must be permittedto petitionthe court for remission ofthe payment ofcosts or any unpaidportion; "7. The convictedperson cannotbe held in contempt for failure to repay ifthe default was not attributable to an intentional refusal to obeythe court order or a failure to make a good faith effortto 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) (citingBarklind, 87 Wn.2d at 814)). 3 The constitution does notrequire that the trial court enter formal findings, though ofcourse it is a goodpractice and helpful on review. See id. at 915-16 (quotingEisenman, 62 Wn. App. at 644 n.10). Had Duncan objected attrial to the LFOs soughtby 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 onrestitution mandatory). Others have beentreated as mandatory bythe Court ofAppeals. State v. Lundy, 176 Wn. App. 96, 102, 308 P.3d 755 (2013) (holding thatthe filing fee imposed by RCW 36.18.020(2)(h) is mandatory and courts have no discretion to considerthe offender's ability to pay). While we have not had occasionto considerthe constitutionality ofall ofthese statutes, we have found that the victimpenalty assessment statute was not unconstitutional on its face or as applied to the defendants inthe case because there were sufficient safeguards to preventthe defendants from being sanctioned for nonwillful failure to pay. See Curry, 118 Wn.2d at 917. 5State 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 rightto 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 "mayrefuse to review any claim oferror 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 atrial court has a statutory obligationto 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 significantburdens on offenders and our community, including "increased difficulty in reentering society, the doubtful recoupment ofmoney by the government, and inequities in administration.'? 

### !d. at 835-87 (citing extensive sources). Given that, and giventhe fact that the trial courts had not made an individualized inquiry into the defendants'

6State v. Duncan, No. 90188-1 · ability to pay before imposingthe LFOs, we remandedto the trial court for
new sentencing hearings. Id. at 839. Consistentwith our opinion inBlazina and our other cases decided since then, we remand to the trial court for resentencing withproper consideration ofDuncan'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 nowto whether the warrantless search ofDuncan's vehicle
was lawful. Briefly, after Duncan's car was stopped and its three occupants
were handcuffed in the back ofseparatepolice cars, the police "walkedup to make sure there was no other occupants hiding inthe vehicle." 1 CD Proceedings (Feb. 14, 2011) at 71. No one else was found, but one officer testified thathe could see a gun onthe floorboards. Id. at 72. Another testified thathe saw shell casings and decided to searchthe car in order "to make sure we.weren't going to [be] towing a car with a handgun inside that could possibly discharge." 

### Jd.

7State v. Duncan, No. 90188-1 Duncanunsuccessfully moved to suppress the gun, shell casings, and passenger statements that flowed from the stop. However, withoutthe benefit of

### State v. Snapp, 174 Wn.2d 177, 275 P.3d 289 (2012), thejudge found the search and seizure wasjustifiedto find evidence ofthe crime of arrest. Thejudge also found the sweep ofthe car andthe seizure ofthe gun
were lawful because ofthe dangerposedby an unsecured weapon in a car as it is being towed. Duncan made several challenges to thejudge's CrR 3.6 ruling belowthat he does not renew at this court. Here, he argues that the search exceeded the permissible bounds ofa 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 warrantrequirement which "provide for those cases where the societal costs ofobtaining a warrant, such as danger to law officers oftherisk ofloss or destruction ofevidence, outweigh the reasons for priorrecourse 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 ofshowing that the search and seizure

8State 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, 447, 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 ofan 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)). Priorto

### 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. Butin the wake of

### Gant, we reexamined the search incident to arrest exception and found it did notjustify warrantless searches ofvehicles for evidence ofthe crime ofarrest once the vehicles' occupants are detained in police cars. 

### Snapp, 174 Wn.2d at 197, 201. Thus, the search here cannotbejustified on the first ground found bythe trial court. Inthe alternative, the State argues that the seizure ofthe gun was justifiedunder the "plainview" exception to the warrant requirement. Suppl. Br. ofResp't at 7 (boldface omitted). However, the trialjudge's order indicates he did notbelieve the officers could see the gun from outside the vehicle and there is nothing in this record that suggests the officers

9State v. Duncan, No. 90188-1 needed to openthe car doors to sweep the vehicle for suspects.4 We find the plain view exception is not available underthese facts. The State also argues that this search was "essentially identical to an inventory search." Jd. at 8. This argument is also not well presentedby 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) (citingHouser, 95 Wn.2d at 154). There is nothing in the trialjudge's CrR 3.6 order orthe 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 ofProsecuting Attorneys (WAPA) and the Washington State Patrol (WSP) ask us to adopt a rule that would authorize officers to search a car wheneverthere is reasonable suspicion it contains a firearm and the vehicle is to be releasedto any third party. WSP's Amicus Curiae Br. at 5, 7; Br. ofAmicus Curiae WAPA at 7-8. We may, butusually do not, reach arguments raised only by amicus. Dragonslayer, Inc. v. Wash. State Gambling Comm 'n, 139 Wn.

4The"State had preparedthe order, whichhad 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 inthe area ofaccidently 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 trialjudge struck outthe words "which was visible from outsidethe vehicle." Id. 10State v. Duncan, No. 90188-1 App. 433, 442, 161 P.3d428 (2007) (citingNobleManor 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]hepresence ofanunsecured firearm presented a safetyrisk to the officers and a dangerto anyone inthe area of accidently discharging while the car was being towed since a caris frequently liftedup and dropped." CP at 207 (stricken language omitted). A warrantless search maybe justifiedwhen officers have reasonable grounds to believethat "objects likelyto 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 ofWashington Search and SeizureLaw: 1988 Update, 11 U. PUGET SOUND L. 

### REv. 421, 538-39 (1988)). Accordingly, we hold thatunder the community caretaking exceptionto the warrantrequirement, officers maymake a limited sweep of
a vehicle when (1) there is reasonable suspicion that an unsecured weapon is in the vehicle and (2) the vehiclehas or shortlywill beimpounded and will be towed from the scene. See id. We caution, however, that the community caretaking exception is a strictly limited exceptionto the warrant requirement. State v. Kinzy, 141 Wn.2d 373, 385, 5 P.3d 668 (2000) (citing Cady v. Dombrowski, 413 U.S.

11State v. Duncan, No. 90188-1 433, 441, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973)). Itmay notbe 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)). Itwill 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 & DebraL. Stephens, Survey ofWashington Search andSeizure Law: 2013 Update, 36 SEATTLE U.L. REV. 1581, 1703-04 (2013) (describing cases). Inthis case, we recognize that it is troubling that the trialjudge denied the suppression motion inpart because he found the search wasjustified in orderto find evidence ofthe crime given-makingit difficult to $ay thatthe officers were not motivated to find evidence. However, given the facts ofthis case and the fact that the sweep ofthe vehicle occurredbefore our opinion in Snapp, 174 Wn.2d 177, was announced, we are confidentthat the desire to remove
an unsecured gun from the vehicle was not here used as a pretext for an otherwise unlawful search. SeeHouser, 95 Wn.2d at 153 (citingHardman, 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 onBlazina andremand for resentencing withproper

12State v. Duncan, No. 90188-1 consideration ofhis ability to pay. We conclude that underthese facts, the limited search ofthe vehicle was lawful and affirm Duncan's conviction.

13State v. Duncan, No. 90188-1

WE CONCUR:

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