### FILED 

## COURT OF APPEALS D! VtSIQ 11 20 APR 22 

### PM 8: 37

AS; TON.



### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

v. PAVEL F. ZALOZH, DIVISION II
Appellant,

Respondent. No. 44107 -1 - II UNPUBLISHED OPINION

MAxA, J. —

### The State appeals atrial court order suppressing all evidence from the 

### investigative stop ofavehicle inwhich Pavel Zalozh was apassengerand dismissing the charges against Zalozh on which the suppressed evidence depended. We hold that the stop wasjustified 

### because the law enforcement officers reasonably suspected thatZalozh,whom they had probable cause to arrest,was the person they saw hiding in the back seat ofthe vehicle. Accordingly, we 

### reverse the trial court' s order suppressing the evidence seized during the stop and its dismissal of the related charges against Zalozh, and remand for trial.No. 44107 -1 - II FACTS



### On the morning ofJune 11, 2012, ateam ofofficers was attempting to locate Zalozh because he allegedly had violated a no contact order with his girl friend, Oleysa Maksimenko, 1 and because he was a suspect in a recent burglary. The officers had probable cause to arrest Zalozh. The officers suspected that Zalozh might be at Maksimenko' s house because ( 1) he had 

### lived with her in the past, (2) officers previously had located him there in violation ofa no
contact order, (3) a person who recently had paid Zalozh's bail told officers that Zalozh often was with Maksimenko, and (4) Zalozh' s parents stated that he might be staying with Maksimenko. However,the officers did not have any actual evidence that Zalozh was at Maksimenko' s house on June 11. In an attempt to locate Zalozh, one officer conducted surveillance of Maksimenko' s house. The officer saw an unidentified adult female open the front door and watch two children 

### walkto the bus stop. Later,the officer observed a silver car back out ofthe garage. As the car 

### drove by him, he sawthat itwas driven bythe same unidentified female. The officer also noticed an adult person wearing a hooded sweatshirt lying down in the back seat ofthe car. The 

### officer,who had experience apprehending fugitives in the past, concluded thatthe person in the back seat was attempting to hide. The officer relayed his observations to other officers who were several blocks away 

### conducting an unrelated arrest and advised them that the silver carwas heading toward their location. As the car matching the first officer's description approached, an officer stepped into the roadway and put his hand outto stop it. The female driver,who officers later identified as

1 We note that Oleysa Maksimenko' s name is spelled three different ways in the record. For this 

### opinion we optto use the spelling from the trial court's findings offact and conclusions oflaw. 2No. 44107 -1 - II

Maksimenko, complied with the officer' s directive. When the car came to a stop, the back - seat 

### passenger sat up. Officers making the stop immediately recognized the person as Zalozh and arrested him. Priorto this stop, none ofthe officers had identified the driver,the back - seat passenger, or the registered owner of the car. Maksimenko consented to a search ofthe car. During the search officers located a backpack andjewelry from burglaries in which Zalozh was a suspect. The State charged Zalozh with one count first degree burglary,two counts theft ofa firearm, and two counts second degree possession ofstolen property. Zalozh moved to suppress the evidence seized from the car. The trial court concluded that officers lacked a reasonable 

### articulable suspicion to stop the car. Therefore,the trial court granted Zalozh' s motion to suppress the evidence obtained as a result ofthe unlawful seizure. The trial court then dismissed the charges against Zalozh. The State appeals. ANALYSIS A. STANDARD OF REVIEW 

### When reviewing the trial court's grant ofa CrR 3. 6 suppression motion,we determine whether substantial evidence supports the challenged findings offact and whether the findings of fact support the conclusions of law. State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009). Evidence is substantial when it is enough `to persuade a fair - minded person ofthe truth ofthe
stated premise.' " 

### Garvin, 166 Wn.2d at 249 (quoting State v. Reid,98 Wn.App. 152, 156, 988 P. 2d 1038 ( 1999)). Unchallenged findings offact are considered verities on appeal. State v. Lohr, 164 Wn.App. 414, 418, 263 P.3d 1287 (2011). We review de novo the trial court' s 

### conclusions oflawpertaining to the suppression ofevidence. Garvin, 166 Wn.2d at249.

3No. 44107 -1 - I1

Findings offact mislabeled as conclusions of law are treated as findings offact on review. State 

### v. Marcum, 24 Wn.App. 441, 445, 601 P.2d 975 ( 1979). B. JUSTIFICATION FOR INVESTIGATIVE STOP The trial court concluded that there were no articulable facts that wouldjustify the stop of Maksimenko' s car. We disagree. Although the officers did not have actual knowledge that 

### Zalozh and Maksimenko were riding together in the carthey stopped,the officers did have a reasonable suspicion based on the totality ofthe circumstances that both Zalozh and Maksimenko were in the car. Accordingly, the investigatory stop wasjustified, and the trial 

### court erred in suppressing the evidence discovered following the stop.

1. Standards for Terry2 Stop Under the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington State Constitution, a police officer generally cannot seize a person without a 

### warrant supported by probable cause. Garvin, 166 Wn.2d at 249; State v.Acrey, 148 Wn.2d 738, 745 -46, 64 P. 3d 594 (2003) ( addressing only Fourth Amendment). A warrantless seizure is considered per se unconstitutional unless it falls within an exception to the warrant requirement. State v. Rankin, 151 Wn.2d 689, 695, 92 P.3d 202 (2004); Acrey, 148 Wn.2d at 746. 

### One established exception is a briefinvestigatory detention ofa person, commonly called

a Terry stop. Acrey, 148 Wn.2d at 746. 

### A police officer may conduct awarrantless investigative stop based upon less evidence than is needed to establish probable cause to make an arrest. 

### Acrey, 148 Wn.2d at 746 - 47. Butthe officer must have "a reasonable suspicion, grounded in specific and articulable facts, that the person stopped has been or is about to be involved in a
crime." Acrey, 148 Wn.2d at 747. " A reasonable, articulable suspicion means that there ` is a

2 

### Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed.2d 889 ( 1968). 4No. 44107 -1 - II

substantial possibility that criminal conduct has occurred or is about to occur.' " State v. Snapp, 174 Wn.2d 177, 197 -98, 275 P. 3d289 (2012) (

### quoting State v. Kennedy, 107 Wn.2d 1, 6, 726 P. 2d 445 ( 1986)). The officer' s suspicion must relate to a particular crime rather than a generalized suspicion that the person detained is " up to no good." State v. Bliss, 153 Wn.App. 197, 204, 222 P. 3d 107 ( 2009). A mere hunch not supported by articulable facts thatthe person 

### has committed a crime is not enough tojustify a stop. State v. Doughty, 170 Wn.2d 57, 63, 239 P.3d 573 (2010).

We determine the propriety of an investigative stop — the reasonableness of the officer' s suspicion —

based on the "totality ofthe circumstances." Snapp, 174 Wn.2d at 198. We must base our evaluation of reasonable suspicion on " ` commonsense judgments and inferences about human behavior.' " State v. Lee, 147 Wn.App. 912, 917, 199 P. 3d 445 (2008) (quoting Illinois

v. Wardlow, 528 U.S. 119, 125, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000)). The focus is on what the officer knew at the time of the stop. Lee, 147 Wn. App. at 917. No subsequent events or 

### circumstances can retroactivelyjustify a stop. State v. Mendez, 137 Wn.2d 208, 224, 970 P.2d 722 ( 1999), 

### abrogated on othergrounds by Brendlin v. California, 551 U.S. 249, 255, 259 n. 5, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007). Specifically,the fact that the officer's suspicion turned out to be correct is irrelevant. See Mendez, 137 Wn.2d at 224, 226. Whether a warrantless investigative stop wasjustified or represented a constitutional violation is a question of law,which we review de novo. State v. Bailey, 154 Wn. App. 295, 299, 224 P.3d 852 (2010). The State bears the burden ofshowing the propriety ofan 

### investigative stop. Acrey, 148 Wn.2d at 746. Ifthe initial stop was unlawful,the items seized from that stop are inadmissible as fruits of the poisonous tree. 

### Kennedy, 107 Wn.2d at 4.

5No. 44107 -1 - II 2. Challenged Findings of Fact The State assigns error to three findings offact included within the trial court' s conclusions of law section. The trial court found that atthe time ofthe stop ( 1) officers did not know that Zalozh was in the vehicle and there was no evidence that he had been at Maksimenko' s house before the stop, (2) the officers did not have any information that Maksimenko was at risk, and (3) the officers did not know that Zalozh was currently violating the no contact order with Maksimenko. We hold that these findings offact (which were mislabeled as conclusions of law) were 

### supported by substantial evidence. None ofthe officers testifiedthatthey had actual knowledge that Zalozh had been at Maksimenko' s house on the day ofthe stop or that they had identified Zalozh as being a passenger in the car before the stop. One ofthe officers testified that she was 

### concerned about Maksimenko' s safety because ofthe possible restraining orderviolation, butthe officer' s concern was not based on any actual knowledge. And the officers had no actual 

### knowledge that Zalozh was violating the no contact order because they did not knowthat he was at Maksimenko' s house or in the car with her. However,these findings offact do not compel the legal conclusion that the stop was 

### unjustified. In order for an investigatory stop to be lawful, officers must have only a reasonable 

### suspicion that criminal conduct has occurred. Acrey, 148 Wn.2d at 747. Actual knowledge is
not required. See 

### Snapp, 174 Wn.2d at 198. 3 As a result, despite the trial court' s factual findings, we must evaluate whether the officers' suspicion that Zalozh and Maksimenko were in 

### 3 In Snapp,the court heldthat an officer's observance ofavehicle driving without lights in dark, cold, and icy conditionsjustified an investigatory stop based on the officer' s rational beliefthat the driverwas violating a statute requiring that headlights be on beginning one - halfhour after sunset despite not having actual knowledge of the exact time of sunset. 174 Wn.2d at 198 -99. 6No. 44107 -1 - II

the car together was reasonable under the "totality ofthe circumstances." Snapp, 174 Wn.2d at 198. 3. Reasonable Suspicion IfZalozh and Maksimenko were in the car together, Zalozh was engaged in criminal activity —

violation ofthe no contact order. As a result, whether the officers here had a reasonable suspicion that a crime was being committed depended on whether it was reasonable to suspect that Maksimenko was driving4 and thatZalozh was the hooded person hiding in the 

### back seat. As noted above, the standard is substantial possibility. Snapp, 174 Wn.2d at 197 - 98. 

### First,there was strong evidence supporting the officers' suspicion that Maksimenko was 

### driving the vehicle they stopped. An officerwas conducting surveillance at Maksimenko' s known address, where the team ofofficers knew she lived with hertwo children. Based on review ofpast law enforcement reports, the officers also reasonably concluded that she was the 

### only adult living there. Inthe morning,an officer observed awoman leave the house brieflyto watch two children walk to a bus stop and then go back into the house. The officer later 

### observed the same woman driving a car out ofthe house's garage. Based on these facts, there was a substantial possibility that the woman driving the carwas Maksimenko. Second, there was evidence supporting the officers' suspicion that Zalozh was at Maksimenko' s house. The trial court made unchallenged findings offact that (1) Zalozh had been located at Maksimenko' s house when he previously had violated no contact orders, ( 2)

4 

### Even ifMaksimenko had not been driving, officers could have stopped the car ifthey knew Zalozh was in the back seat because they already had probable cause to arrest him for other offenses. See State v. Quezadas-Gomez, 165 Wn.App. 593, 602 - 03, 267 P.3d 1036 (2011) 

### investigatory stop to inquire ofdefendant' s name and address was legallyjustified where officer already had probable cause to arrest him). However, whether there was a reasonable suspicion that Maksimenko was driving is relevantto the identity ofthe passenger. It is more likelythat 

### Zalozh would be riding with his girl friend rather than some unidentified female. 7No. 44107 -1 - II

Zalozh had lived there in the past, (3) Zalozh' s parents told police that Zalozh would be at Maksimenko' s house despite the no contact order, and (4) another person told police that Zalozh spent most ofhis time with Maksimenko. This evidence established that there was a strong 

### possibility thatZalozh was at Maksimenko' s house that day. Third, there was a legitimate reason the officers suspected that Zalozh rather than 

### someone else was in back seat ofthe car driving away from Maksimenko' s house. Instead of 

### simply sitting inthe car,the personwas lying down inthe back seat. And the crucial fact isthe
officer' s testimony that based on his experience, the passenger was 

### hiding.5 If Zalozh was that 

### passenger, he would have a reason to hide because he was violating the no contact order. There would be no known reason that someone other than Zalozh would be hiding in the back of Maksimenko' s car. In light ofthe other circumstances, the fact thatthe passenger was hiding 

### created a strong possibility thatthe passenger was Zalozh. 

### Standing alone, each ofthese groups offacts would not be enoughto conclude thatthe officers' suspicion that Zalozh and Maksimenko were in the car together was reasonable. The 

### officers had no actual knowledge regarding the identity ofthe people in the car. The driver could have been someone other than Maksimenko. Zalozh might not have been at Maksimenko' s 

### house. The person hiding in the back ofthe car mighthave been someone otherthan Zalozh. However, we must evaluate the reasonableness ofthe officers' suspicion based on the totality of the circumstances. Snapp, 174 Wn.2d at 198. And certainty — or even probability — is 

### not required tojustify an investigatory stop. See Snapp, 174 Wn.2d at 198; State v. Young, 167 Wn.App. 922, 929, 275 P. 3d 1150 (2012). Considering all the evidence, we conclude that there

5 

### Inthe context ofan investigatory stop, an officer may rely on his experience to identify seemingly innocuous facts as suspicious. State v. Moreno, 173 Wn.App. 479, 492 - 93, 294 P.3d 812, review denied, 177 Wn.2d 1021 ( 2013).No. 44107 -1 - II



### was a substantial possibility that Zalozh was the person hiding in the back ofthe car and Maksimenko was the person driving. As a result,we hold that the officers had a reasonable suspicion based on articulable facts that a crime was being committed, and that theywere justified in making an investigatory stop. We hold thatthe trial court erred in concluding thatthe investigatory stop was unlawful, 

### suppressing the evidence discovered in the search following that stop, and dismissing the charges againstZalozh. Accordingly,we reverse the trial court's ruling suppressing the evidence from 

### the investigative stop, reverse its order dismissing the charges againstZalozh, and remand for trial. 

### A majority ofthe panel having determinedthat this opinion will not be printed in the Washington Appellate Reports but will be filed for public record pursuant to RCW 2.06.040, it is

so ordered.

We concur:

9