IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OFWASHINGTON, No. 77922-2-I

Respondent, DIVISION ONE V. UNPUBLISHED OPINION CHRISTOPHER JOHNSON, Appellant.

_______________________________ FILED: October 7, 2019 MANN, A.C.J.

— ChristopherJohnson was convicted at a bench trial of possession ofa controlled substance while on community custody. On appeal, Johnson contends the

### trial court erred in admitting his custodial statement because the State failed to prove he was fully advised of his Miranda1 rights. Johnson furthercontends thatthe trial court erred when 

### itfailed to suppress evidence following an unconstitutional seizure. Because the State proved by a preponderance ofthe evidence thatthe police properly read Johnson his rights from a department-issued card, and because the investigatory stop that culminated in Johnson’s arrest on an outstanding warrantwas supported by reasonable suspicion, we affirm.

1 Mirandav. Arizona, 384 

### U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).No. 77922-2-1/2

On May 30, 2016, at approximately 8:00 p.m., Sergeant Marcus Dill ofthe Snohomish County Sheriff’s Office was waved down by awoman who asked him to investigate abandoned cars in an area near Mariner High School in Everett. While running checks on license plates and tagging cars with 24-hour impoundment notices, Sergeant Dill noticed a blackAudi with no license plates. Upon closer inspection, he observed thattheAudi had a temporarytrip permittaped to the rearwindow. He was aware that a similarvehiclewas recently involved in an eluding incidentwith other officers in his department. He believed the driver in that incidentwas Aaron Quinn, an individual he knewfrom priorcontacts. Sergeant Dill knew Quinn had a “historywith weapons.” As Sergeant Dill approached the vehicle, he observed a man and woman asleep in the passengerseat. He also noticed a glass pipe on the centerconsole which he believed was the type used fordrug consumption. He did not recall whetherthe pipe had any residue indicating it had been used. When he knocked on the windowwith his flashlight, the woman woke up, grabbed the pipe, and tossed it in the back seat. Sergeant Dill instructed both individuals to get out ofthe vehicle. He thoughtthe
man looked familiar, butwas not initially certain ofthe man’s identity. He knewthe man was not Quinn. Sergeant Dill placed the man in handcuffs and moved him to the rearof thevehicle. He did not handcuffthe woman. Around the same time, Deputy Nathan Smith arrived to assist. Sergeant Dill determined thatthe Audi was not stolen and that itwas registered to Quinn’s mother. He then asked both individuals to identifythemselves. The woman

2No. 77922-2-L13

identified herselfas Dallas Simpson. The man initially provided a false name, but eventually identified himselfas ChristopherJohnson. This allowed Sergeant Dill to discoverthatJohnson had an outstanding warrantfor his arrest. Sergeant Dill arrested Johnson on the warrant and, reading from a card issued bythe Washington State Criminal Justice Training Commission, advised him of his Miranda rights. Sergeant Dill then searched Johnson and found two balloons containing
a substance he believed to be heroin. Sergeant Dill asked Johnson aboutthe balloons, and Johnson stated thatthey contained ‘brown.” Sergeant Dill recognized thatterm as street slang for heroin. Johnson was alsofound in possession ofa plastic bag filled with
a material thatwas laterdetermined to be heroin. Following Johnson’s arrest, police impounded the Audi and obtained a warrantto search it. Items recovered from the search included a cloth bag on the driver’s seat containing 123 grams of heroin and 12 grams of methamphetamine, and a purse containing Simpson’s identification and large amounts ofcash in denominations of$20
or less. Attrial, Simpson testified forthe defense thatthe drugs in the Audi belonged to herand thatJohnson did not participate in herdrug selling enterprise. She explained thatJohnson planned to turn himself in on his warrants, so she gave him heroin for use while injail. The State charged Johnson with one count of possession ofa controlled substance (heroin and methamphetamine) with intentto manufacture ordeliver, committed while on community custody. At a CrR 3.5 hearing, the trial court ruled that Johnson was properly advised of his Miranda rights and that his statement identifying the content ofthe balloons as “brown” was admissible. At a CrR 3.6 hearing, the trial

3No. 77922-2-1/4

court ruled that police had reasonable articulable suspicion to detain Johnson and that the evidence found on Johnson’s person following his arrestwas admissible. Following a bench trial, the courtfound Johnson guilty of possession ofa controlled substance committed while on community custody, but not guilty of possession with intentto deliver. The court imposed a low-end standard range sentence of 12 months and one day. Johnson appeals.

Johnson argues thatthe trial court erred in denying his CrR 3.5 motion to suppress his post-Miranda statementthatthe balloonsfound in his pocket contained “brown.” The trial court’s legal conclusions regarding the adequacy of Miranda warnings are issues of law reviewed de novo. State v. Mayer, 184 Wn.2d 548, 555, 362 P.3d 745 (2015). “Miranda warnings were developed to protect a defendant’s constitutional right notto make incriminating confessions oradmissions to police while in the coercive environment ofpolice custody.” State v. Heritage, 152 Wn.2d 210, 214, 95 P.3d 345 (2004). Without Miranda warnings, statements made during custodial interrogation are presumed involuntary. State v. Sargent, 111 Wn.2d 641, 647-48, 762 P.2d 1127 (1988). “The State bears the burden ofshowing a knowing, voluntary, and intelligent waiver of Miranda rights by a preponderance ofthe evidence.” State v. Athan, 160 Wn.2d 354, 380, 158 P.3d 27 (2007). Substantial evidence existswherethere is a sufficient quantity ofevidence in the record to persuade afair-minded, rational person of the truth ofthe finding. State v. Halstien, 122 Wn.2d 109, 129, 857 P.2d 270 (1993).

4No. 77922-2-1/5

Johnson asserts that Sergeant Dill’s testimony that he read Johnson his rights from “the normal Washington State Criminal Justice Training Commission Miranda warning card” was legally insufficientto prove thatthe required Miranda warnings were in fact given. He contends that it is not possible to determine whetherthe card properly stated all Mirandawarnings because Sergeant Dill did not read its contents into the record and the State did not enterthe card into evidence. We disagree. Sergeant Dill testified that he advised Johnson ofthe required Miranda warnings and that he did so using a standard warning card that he carries in his patrol kit. The record contains no evidence thatthe warnings printed on this card are inadequate. This evidence weighs in favorofan inference thatJohnson more likelythan not received the required warnings and that his subsequent statementwas voluntary. Moreover, even ifthe statementwas admitted in error, any error in considering it
was harmless beyond a reasonable doubt. Admission ofa confession obtained in violation of Miranda is subjectto harmless error analysis. State v. Reuben, 62 Wn. App. 620, 626-27, 814 P.2d 1177 (1991). “A constitutional error is harmless ifthe appellate court is convinced beyond a reasonable doubtthat any reasonablejurywould have reached the same result in the absence ofthe error.” State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985). The reviewing court looks only atthe untainted evidence to determine if it is so overwhelming that it necessarily leads to afinding ofguilt. Guloy, 104 Wn.2d at426. Here, Johnson’s statementthatthe balloons contained “brown” had no impact on his conviction for possession ofa controlled substance. Johnson was found in possession oftwo balloons and one plastic bag containing a total ofapproximately 86

5No. 77922-2-1/6

grams of material. The state crime lab determined thatthe plastic bag contained approximately 17 grams of heroin, but it did nottestthe contents ofthe balloons. The court concluded thatthere was reasonable doubt as to whetherthe balloons contained
a controlled substance. And the court specified that itfound Johnson guilty of possessing “approximately 17 grams of heroin.” It is thus readily apparentthat Johnson’s conviction was based on the 17 grams of heroin found in the plastic bag, not
on the untested contents ofthe balloons. The courtwould have reached the same result even ifJohnson’s statement regarding the contents ofthe balloons had been excluded,

Johnson argues thatthe trial court erred in denying his CrR 3.6 motion to suppress the items found in his pockets because itwas the fruit ofan unlawful seizure. We reviewa trial court’s decision on a CrR 3.6 motion to suppress to determine whether the court’s findings are supported by substantial evidence and whetherthose findings supportthe conclusions of law. State v. Cole, 122 Wn. App. 319, 322-23, 93 P.3d 209 (2004). Unchallenged findings offact are verities on appeal. State v. Acrey, 148 Wn.2d 738, 745, 64 P.3d 594 (2003). We review conclusions of law de novo. State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009). “Generally, underthe Fourth Amendmentto the United States Constitution and article I, section 7 ofWashington’s constitution, an officer may not seize a person without a warrant.” State v. Fuentes, 183 Wn.2d 149, 157-58, 352 P.3d 152 (2015) (citing Garvin, 166 Wn.2d at 248). Awarrantless search is perse unreasonable unless the search falls within a specific exception to the warrant requirement. State v. Ross,

6No. 77922-2-1/7

141 Wn.2d 304, 312,4 P.3d 130 (2000). The State has the burden of proving that an exception applies. State v. Vrieling, 144 Wn.2d 489, 492, 28 P.3d 762 (2001). ‘When
an unconstitutional search orseizure occurs, all subsequently uncovered evidence becomes fruit ofthe poisonous tree and must be suppressed.” State v. Ladson, 138 Wn.2d 343, 359, 979 P.2d 833 (1999). ATerry2 investigative stop is an exception to the warrant requirement. Acrey, 148 Wn.2d at 746. “The purpose ofa Terry stop ‘is to allowthe police to make an intermediate responseto a situation forwhich there is no probable cause to arrest but which calls forfurther investigation.” State v. Moreno, 173 Wn. App. 479, 492, 294 P.3d 812 (2013) (quoting Statev. Armenta, 134 Wn.2d 1, 16, 948 P.2d 1280 (1997)). To conduct a valid Terry stop, the investigating officer must have “reasonable suspicion ofcriminal activity based on specific and articulable facts known to the officeratthe inception ofthe stop.” Fuentes, 183 Wn.2d at 158. In determining whetherthe officer had reasonable suspicion, we considerthe totality ofthe circumstances known to the officeratthe inception ofthe stop, including “the officer’s training and experience, the location ofthe stop, the conduct ofthe person detained, the purpose ofthe stop, and the amount of physical intrusion on the suspect’s liberty.” Id. (citing Acrey, 148 Wn.2d at 746-47. “Ifthe stop exceeds these limitations, it can bejustified only by a showing of probable cause.” State v. Mitchell, 80 Wn. App. 143, 145, 906 P.2d 1013 (1995). The showing necessaryto meetthe reasonable suspicion standard foraTerry stop is much lowerthan the showing necessaryto meetthe probable cause standard fora search warrant. State v. Lee, 147 Wn. App. 912, 921-22, 199 P.3d 445 (2008).

2Terryv. Ohio, 392 U.S. 1,88 S. Ct. 1868,20 L. Ed. 2d 889 (1968). 7No. 77922-2-118

Johnson argues that Sergeant Dill lacked reasonable suspicion ofcriminal activityto support a valid Terry stop. During this seizure, Sergeant Dill asked Johnson to identify himself, which led to the discovery of a warrantforJohnson’s arrest. Johnson therefore asserts thatevidence discovered in the subsequentsearch of his person should have been suppressed as the fruit ofthe original unlawful seizure. Although this is a relatively close call, we agree that Sergeant Dill had a reasonable and articulable suspicion to initiate a brief investigative Terrystop. Sergeant Dill noticed a blackAudi while responding to a citizen complaint regarding abandoned vehicles. The car initiallydrew his attention because it did not have license plates and because he recognized it as being associated with a recent eluding incident involving Quinn, an individual known to carryweapons. Although Sergeant Dill knew Quinn had been arrested in that incident, he did not knowwhether Quinn was still in custody. When Sergeant Dill observed the man and woman sleeping in the car, he did not know their identities orwhethertheywere connected with the recent eluding incident. Sergeant Dill then observed a glass pipe on the center console ofthe carwithin reach of the man and woman. The pipe was consistent in his experience with the type used to ingest illegal drugs. When he knocked on the window, the woman woke up, grabbed the pipe, and threw it in the back seat. Johnson contends that possession ofa glass pipe, without evidence of use, does notjustify a Terry stop because mere possession ofdrug paraphernalia is not a crime. Johnson notes thatthere is no evidence thatthe paraphernalia had ever been used. Sergeant Dill did not recall whetherthe pipe showed any residue orotherevidence of
use. Johnson therefore contends that Sergeant Dill lacked reasonable suspicion of

8No. 77922-2-119

criminal activity. We disagree. When Sergeant Dill knocked on the carwindow, Simpson grabbed the pipe and threw it in the back seat. Sergeant Dill’s observation of the glass pipe in plain view, togetherwith Simpson’s action in attempting to hide it, supported reasonable suspicion underthe totality ofthe circumstances thatthe occupants ofthe carwere involved in a crime such as possession ofa controlled substance. Johnson furthercontends that his presence in the car nearthe pipe did not provide individualized suspicion that he possessed the pipe forany criminal purpose. We disagree. One can be injoint constructive possession ofcontraband jointlywith another person. State v. Morgan, 78 Wn. App. 208, 212, 896 P.2d 731 (1995). In Morgan, police noticed two men standing by a truck in a public parkwith water, aluminum foil, and white powder laid out on the hood. ki. at210. The offer recognized these items as paraphernaliafor using cocaine. The officerarrested the driverand the passenger. On appeal, the passengerargued thatthe officer lacked probable cause to arrest him forjoint constructive possession ofdrug paraphernalia. Id. at 211. In rejecting this argument, the court noted thatthe contraband was located in plain viewof both the passenger and the driver, and that both had equal access to the items. Id. at 213. Here, similarly, both individuals in the car had equal access to the glass pipe, which was located in plain view on the center console. Itwas reasonable to inferjoint constructive possession underthe totality ofthe circumstances. Johnson likens his case to State v. Grande, 164 Wn.2d 135, 187 P.3d 248 (2008), butthat case is distinguishable. The Grande court held thatthe smell of marijuana emanating from a vehicle, without more, does not establish probable cause to

9No. 77922-2-1/10

arrest all occupants ofthe vehicle and conduct a search incidentto arrest. ki. at 138. In so holding, the court emphasized thatthe officer had probable cause to search the vehicle, but notto immediately arrestthe occupants without individualized probable
cause. ki. at 146-47. Here, in contrast, Sergeant Dill did not arrest Johnson based on the glass pipe. Rather, he conducted an investigatory stop based on reasonable suspicion. Johnson, relying on State v. Richardson, 64 Wn. App. 693, 825 P.2d 754 (1992) and State v. Doughty, 170 Wn.2d 57, 239 P.3d 573 (2010), argues that Simpson’s act of throwing the pipe cannot be imputed to him for purposes ofestablishing reasonable
cause foran investigative stop. In Richardson, the courtfound a Terry stop improper based on the defendant’s presence in a high crime area late at nightwith an individual suspected of“running drugs.” 64Wn. App. at 697. In Doughty, the courtfound a Terry stop improper based on defendant’s briefvisitto a suspected drug house at 3:20 a.m. 170 Wn.2d at 61. Here, Sergeant Dill’s reasonable suspicion to conduct an investigative stop was based on more than presence in a high crime area or being with
someone known to sell drugs. Itwas based on Johnson’sjoint constructive possession ofthe glass pipe. Johnson cites no case lawforthe proposition that police cannot considerthe actions orwords ofanother individual involved atthe scene as one ofthe factors to be considered in determining whetherthere is reasonable suspicion of criminal activity. Lastly, Johnson asserts that even if Sergeant Dill had reasonable suspicion to support a Terry stop, reversal is required because handcuffing Johnson amounted to a custodial arrestwithout probable cause. We disagree. It is undisputed thatthis act

10No. 77922-2-I/Il

constituted a seizure. But “[n}ot every seizure is an arrest.” State v. Salinas, 169 Wn. App. 210, 217, 279 P.3d 917 (2012). A custodial arrest occurs ifa reasonable detainee underthe circumstances would consider himselfor herself underfull custodial arrest. State v. Glenn, 140 Wn. App. 627, 638, 166 P.3d 1235 (2007). Factors to be considered include whetherthe suspect is handcuffed, placed in a patrol vehicle for transport, ortold that he orshe is underarrest. Salinas, 169 Wn. App. at 218. Here, Sergeant Dill handcuffed Johnson atthe inception ofthe stop. But he did not place Johnson in a patrol caror inform him that he was under arrest until after he discovered Johnson’s outstanding warrant. Moreover, we agree with the State that Sergeant Dill acted reasonably by handcuffing Johnson forsafety purposes atthe inception ofthe investigatory stop. “The permissible scope ofan investigatorystop is determined by all the circumstances facing the officer atthe time ofthe stop.” Mitchell, 80 Wn. App. at 146. While nottypically part ofa Terry stop, police may employ intrusive measures such as drawn weapons or handcuffs forsafety purposes where a reasonable person would believe that he or others are in danger. State v. Williams, 102 Wn.2d 733, 740 n.2, 689 P.2d 1065 (1984); Mitchell, 80Wn. App. at 146; State v. Belieu, 112 Wn.2d 587, 602, 773 P.2d 46 (1989). Factors that bearon the issue of reasonableness include the nature ofthe crime under investigation, the degree ofsuspicion, the physical location ofthe stop, the time ofday, and the reaction ofthe suspectto the police. Belieu, 112 Wn.2d at 600. “The calculus of reasonableness must embody allowance forthe factthat police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and

11No. 77922-2-1/12

rapidly evolving—aboutthe amount offorce that is necessary in a particularsituation.” Graham v. Connor, 490 U.S. 386, 396-97, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). Here, Sergeant Dill testified on direct examination that he placed Johnson in handcuffs forsafety reasons during the investigation: Q. And why did you place him in handcuffs? A: Initially, I was by myself. There was

-- there’s a couple

-- based on the previous suspect and who the vehicle belonged to, who I believed it belonged to, there were several factors involving his criminal history and weapons. And atfirst, thatwas kind of my intentwasjustto detain the parties until I could figure outwho theywere and until I had another unit come and itwould be a little more safe. Sergeant Dill furthertestified on cross examination: Q. Did you handcuff him because you thought he was Quinn ordid you handcuff him because ofthe drug paraphernalia in the car? A. Because ofthe drug paraphernalia, and the facts thatthe car had been involved in a pursuit and Mr. Quinn’s history with weapons and so forth. After hearing the parties’ arguments, the trial court stated: [B]ecausefor purposes of me determining whether or notthis was a Terry stop or an arrest, whatwas importantto me was to find outfactuallywhy he placed him in handcuffs. And his statementthat he was concerned about his safety, he was the only one there, thatthe vehicle was associated with somebodywho had a history ofgun ownership. He recognized this person somewhat butwasn’t sure what itwas. I thinkthat all ofthat, for me, from the totality ofcircumstances is such that itwas not a formal arrest. The record shows that Sergeant Dill was patrolling alone when he encountered the Audi at around 8:00 p.m. in an area where abandoned cars were frequently dumped. He recognized the Audi as being associated with a recent eluding incident involving an individual known to carryweapons. The identity ofthe individuals in theAudi was unknown. We also note that Sergeant Dill did not search Johnson’s person until after he arrested Johnson on the outstanding warrant. Accordingly, we conclude that
12No. 77922-2-1/13

Sergeant Dill did not effect a custodial arrest by handcuffing Johnson atthe inception of the investigative stop. Affirmed.

WE CONCUR: 

### I C—



# 4.

13