This opinion was filed for record

/ 

# FIIIE IN CLERKS OPFICB 8UPRB/S COURT,SniEOFMMSHMSIOia I 

# niXA IiumM-, C£ • at DOfl/n onNcn). ^,^11

CHIEFJUSTICE SUSAN L. CARLSON SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Petitioner,

V. ERIC DANIEL CRUZ,

Respondent. NO. 93732-0
EN BANC NOV 0 2 2017 Filed



### GORDON McCLOUD, J.—In 2012, Officer Troy McCormick of the 

### Washington State Department of Fish & Wildlife saw Eric Daniel Cruz illegally "snag" a salmon in the Similkameen River. McCormick arrested Cruz for this 

### misdemeanor fishing violation. McCormick also handcuffed Cruz, searched his body, and found no weapons, but further questioned the handcuffed Cruz about 

### whether he had weapons elsewhere. Cruz truthfully acknowledged that he had firearms in his truck. McCormick locked Cruz, who was still handcuffed, in the back ofhis patrol car and removed three guns from Cruz's truck. McCormick did 

### not have—and never sought—a search warrant. The State subsequently chargedState V. Cruz (Eric Daniel),No.93732-0



### Cruz, who had a prior felony, with three counts of second degree unlawful possession ofa firearm. 

### Cruz moved to suppress the firearms. He argued that Arizona v. Gant, 556 

### U.S. 332,343, 129 S. Ct. 1710, 173 L.Ed. 2d 485 (2009),'prohibited the search of his truck. The State argued that Gantdid notprovide the applicable rule oflaw;that 

### Terry v. Ohio,392U.S. 1,24,88 S. Ct. 1868,20 L.Ed. 2d 889(1968),as extended to vehicles in Michigan v. Long,463 U.S. 1032, 1049, 103 S.Ct. 3469,77 L.Ed.2d 

### 1201 (1983),^ provided the framework for analysis instead; and that those decisions permitted the search. The trial courtagreed with Cruz. Itruled that Gantcontrolled, rejected the State's Terry and Long argument, and suppressed the firearms. It also found that its suppression order effectively "terminate[d] the case," Clerk's Papers (CP)at 7,thus making that order immediately appealable under RAP 2.2(b)(2). The State then moved to dismiss. The trial court granted that motion and dismissed with prejudice. The State then appealed the suppression order,butnotthe
'Gant authorizes a warrantless search of a vehicle incident to arrest only if the arrestee is "unsecured and within reaching distance ofthe passenger compartment at the time of the search." 556 U.S. at 343. ^ Terry held that an officer may conduct a limited protective "frisk"for weapons of a person who has been lawfully stopped ifan officer reasonably believes that a suspect is "armed and presently dangerous"based on specific,articulable facts. 392U.S.at 24. Long additionally held that an officer may conduct a limited Terry search for weapons in a vehicle ifa suspect is armed and dangerous and "may gain immediate control ofweapons" in the vehicle. 463 U.S. at 1049.State V. Cruz (Eric Daniel),No.93732-0

dismissal order. Division Three ofthe Court ofAppeals affirmed. State v. Cruz, 195 Wn.App. 120, 380 P.3d 599 (2016). 

### We granted review,iSto/e V. Cruz, 187 Wn.2d 1031,399 P.3d 1104(2017),to decide whether the rule of Gant and State v. Snapp, 174 Wn.2d 177, 190-91, 275 P.3d 289 (2012)(concerning the exception to the warrant requirement for a search incident to arrest) controls the outcome; or whether the rule of Terry and Long (concerning the exception to the warrant requirement for frisks based on individualized suspicion that a suspect is armed and dangerous)controls instead;and how each rule would apply to these facts. But a procedural issue became apparent after we granted review. We now dismiss for the reasons explained below.
Facts On August 10,2012,Officer McCormick with the Washington Department of Fish & Wildlife Police was out on a solo patrol of the Similkameen River in Okanogan County. McCormick,from up on a cliff, watched Cruz fish for about 30 minutes. During this time, he saw Cruz "snagging," an illegal fishing technique. The officer got in his truck and quickly drove to Cruz's location. It was approximately 10 a.m.State V. Cruz (Eric Daniel),No. 93732-0

Once there, Officer McCormick contacted Cruz and asked to see his fish. Cruz complied, and after examining them, the officer confirmed that the fish had been snagged. McCormick then handcuffed Cruz and informed him that he was under arrest for snagging. McCormick searched Cruz's body incident to arrest and found a small amount of marijuana, but no weapons. He did not have a search warrant,nor did he attempt to get one. Cruz had been fishing with a companion, "Mr. Rose." McCormick ordered Rose to stay away from Cruz and Cruz's truck. Rose complied and remained 15-20 

### feet away. McCormick did not detain or restrain Rose in any way,and he did not consider Rose to be a suspect. Cruz also cooperated with all of McCormick's requests. 

### After handcuffing Cruz and searching his body,McCormick asked Cruz ifhe 

### had any weapons. Cruz answered that he had guns in his truck. McCormick put Cruz,who was still handcuffed,in his patrol car,locked him in,and wentto get the 

### guns out ofthe truck.^ When McCormick went to retrieve those guns from Cruz's truck,Cruz"could notaccesshis vehicle to gain immediate control ofthe weapons." CP at 10 (Finding ofFact(FF)16). And at that moment,McCormick had no reason



### ^ According to McCormick's report,he seized three guns from Cruz's truck—"two rifles and a pistol." CP at 31. 4State V. Cruz (Eric Daniel),No.93732-0

to believe that these weapons were connected to any criminal activity. His intent at the time was to secure the weapons during the encounter but to return them to Cruz after citing him for illegal fishing and marijuana possession. CP at 11 (FF 19). After he seized Cruz's guns,Officer McCormick learned that Cruzhad aprior felony conviction thatmade him ineligible to carry firearms. McCormick cited Cruz for the marijuana and for snagging fish and then released him, in accordance with his department's policy. But the officer retained the guns as evidence ofthe crime 

### ofunlawful possession ofa firearm. The trial court explicitly found that during this encounter, "there was no evidence presented that Officer McCormick was in 

### danger." Id.(FF 24). Thetrial courtmadethis finding despite the factthatthe officer testified that he initially seized the guns "for officer safety and to secure the scene." Id (FF 23). ProceduralHistory 

### Two years after this encounter, in December 2014, the State charged Cruz 

### with three counts ofsecond degree unlawful possession of a firearm in Okanogan County Superior Court. Cruzmoved to suppress the firearms. The courtgranted the motion, finding that McCormick's warrantless search of Cruz's truck and 

### warrantless seizure ofhis guns violated Gant,the Fourth Amendment,and article I, 

### section 7, and that the search did not meet the criteria for the Terry and LongState V. Cruz (Eric Daniel),No.93732-0

exception to the warrant requirement. U.S. CONST,amend. IV; WASH.CONST, art. I, § 7. The court also ruled that its order "terminate[d]the case" against Cruz,CP at 7,thus making that suppression order immediately appealable. RAP 2.2(b)(2). The State moved to dismiss the case withoutprejudice that same day;the trial court instead dismissed with prejudice. CP at 4. The State appealed the suppression order, but not the dismissal order. It 

### argued thatthe search fit either the exigent circumstances exception or the Terry and Long exception to the warrant requirement. The Court of Appeals rejected both arguments and held that McCormick's actions violated the Fourth Amendment and article I, section 7. Cruz, 195 Wn.App.at 126. 

### We granted review. Cruz, 187 Wn.2d 1031. At oral argument, the parties addressed a possible mootness issue raised by this court. After that argument,the State filed a motion to amend the notice of appeal, pursuant to RAP 5.3(h). A majority ofthis court granted that motion.
We now dismiss review. Analysis I. The State Failed To Brief and Assign Error to the Trial Court's Decision To Grant the State's Own Motion To Dismiss 

### We begin with an issue thatneitherparty mentioned in its briefing. On March 26,2015,the trial court entered its order suppressing evidence. This order included 6State V. Cruz (Eric Daniel),No.93732-0



### a handwritten finding that "the practical effect ofthis order is to terminate the case." 

### CP at 7. Immediately thereafter,the State moved for an order ofdismissal without 

### prejudice. The trial court granted dismissal but, according to both its March 26, 2015,written order and the docket entry, it dismissed "with prejudice." CP at 4. 

### The State appealed from the order ofsuppression. It did not appeal from the order ofdismissal. 

### RAP 2.2(b)(2) gives the State a right to file an interlocutory appeal from a pretrial order suppressing evidence in a case like this. It states in relevant part, {T\he State . . . may appeal in a criminal case only from the following superior court decisions and only if the appeal will not place the defendant in double jeopardy:

. . . A pretrial order suppressing evidence, if the trial court expresslyfinds that thepractical effect ofthe order is to terminate the
case. RAP 2.2(b)(2) (emphasis added). The superior court made that "express[] fmd[ing]," so the suppression order was immediately appealable. But the State then "gratuitously presented the trial court" (in the words of State V. Fortun, 94 Wn.2d 754, 755,626 P.2d 504 (1980)(per curiam))a motion to dismiss its own case, despite the already appealable suppression order. The trial court dismissed with prejudice.State V. Cruz (Eric Daniel),No.93732-0

II. We Have Previously Held, In Virtually Identical Circumstances,That the State's Invitation To Dismiss, Failure To Brief, and Failure To Assign Error to the Invited Dismissal Bars Our Review We have considered the appealability of suppression orders entered in 

### virtually identical situations on at leastthree occasions. InState v.Perry, 120 Wn.2d 200,202,840 P.2d 171 (1992)(per curiam),overruled on other grounds by State v. 

### Olson, 126 Wn.2d 315, 319, 893 P.2d 629 (1995),we dismissed the State's appeal of a suppression order because the State failed to "assign error to the dismissal of the information" that the State itselfsought. In State v. Pam, 101 Wn.2d 507,510- 11,680 P.2d 762(1984),overruled on other grounds by Olson, 126 Wn.2d 315,we 

### dismissed the State's appeal of a privilege ruling that gutted the State's habitual 

### offender charges,counts 1 and 2,becausethe State failed to challenge,brief,orargue the dismissal ofthe entire case,including count3;we characterized the State's action
as "invited error." And in Fortun, 94 Wn.2d at 756-57, we dismissed the State's 

### appeal ofa suppression order because the State failed to challenge,brief,or mention the dismissal ofthe entire case that it sought and obtained. 

### Indeed,Fortunes,procedural posture was identical to the procedural posture 

### ofthis case. In Fortun,the court entered a suppression order that was appealable under RAP 2.2(b)(2). But the State also sought and obtained a dismissal order. OnState V. Cruz (Eric Daniel),No.93732-0

appeal,the State failed to brief or assign error to that dismissal. Fortun, 94 Wn.2d at 756. We explained in Fortun that even ifwe ordered reversal ofthe suppression order, "fundamental common sense compels us to conclude there remains no existing charge to which a possible reversal ofa pretrial order could apply"because "the dismissal order would remain unchanged and the case below would still be at an end." Id. at 757,756. We dismissed the appeal. Id. Pam was similar. The trial court sustained a defense objection to the prosecutor's questions seeking to elicit attorney-client privileged information. 101 

### Wn.2d at 510. This privilege ruling gutted two ofthe State's three charges. The trial court then dismissed its entire information, though not at the State's request. The State then appealed the privilege order, but not the dismissal order that ended 

### its case. The Court ofAppeals reversed the trial court's privilege ruling. But we reversed the Court ofAppeals. We followed Fortun and held thatthe State's failure to appeal the dismissal—even though the State did not seek that dismissal— amounted to a "waive[r]" of that "claimed error," and even constituted "invited
error." Id. at 511. 

### The circumstances in Perry were "precisely the same as in Fortun^ 120 

### Wn.2d at 202, and as in this case. The trial court suppressed a telephone call that gutted the State's possession with intentto distribute case. Id. at 201. The trial courtState V. Cruz (Eric Daniel),No.93732-0

then dismissed the case,at the State's request. Id. at 202. We accepted certification from the Court ofAppeals. Three and a halfmonths later,the defendantfirst "raised the issue ofthe State's failure to assign error to the order of dismissal." Id. We followed Fortun and dismissed the case,explaining.

The State did not assign error to the dismissal ofthe information.

. Therefore, State v. Fortun, 94 Wn.2d 754, 626 P.2d 504 (1980) mandates dismissal of this case because the circumstances here are precisely the same as in Fortun. See also State v. Pam,101 Wn.2d 507, 510-11,680 P.2d 762(1984). The State has not asked us to reconsider the holding in Fortun, nor offered any policy arguments why Fortun should not dictate dismissal. We have not reconsidered Fortun. The State only argues that its notice of appeal is from the order of suppression and dismissal. That argument fails to recognize the difference between a notice ofappeal and an assignment oferror. See RAP 10.3(a)(3). Perry, 120 Wn.2d at 202. 

### The State makes the same attempt in this case that it made in Perry. In both cases, "[t]he State's failure to assign error to the order ofdismissal" was not raised 

### until after our courtaccepted review. Id. In both cases,the State attempted to correct that problem after review was accepted—in Perry, by "argu[ing] that its notice of appeal is from the order of suppression and dismissal," id., and in Cruz's case, by filing a postargument motion to amend the notice ofappeal pursuant to RAP 5.3(h) to add in the dismissal order. A majority ofthe court has voted to grant the State's 

### motion to amend in this case. Butitdoes notchange theFortun/Pam/Perry analysis.

10State V. Cruz (Eric Daniel),No.93732-0



### As this court has explained,there are three critical problems with the State's appeal in a situation like this: first,the State failed to assign error to the order ofdismissal, in violation ofone RAP (RAP 10.3(a)(4)); second,the State failed to briefand argue 

### the propriety ofthe order ofdismissal,in violation ofanotherRAP(RAP 10.3(a)(6)); and third, the State was the party that affirmatively requested—or "invited"—the trial court to enter the dismissal order that it now complains about. Characterizing the "notice ofappeal [as being]from the order ofsuppression and dismissal," as the amended notice ofappeal now does,fails to solve these invited error,failure to brief, and failure to assign error problems. Perhaps tacitly acknowledging this,the State instead relies on a slightly more recent case on a related issue, Olson, 126 Wn.2d 315,to bolster its argument. But 

### Olson considered the opposite situation. In Olson, the State lost a suppression motion and then sought and obtained an order of dismissal, but the State 

### subsequently appealed the dismissal order—not the suppression order. Id. at 316- 17. 

### We stated in Olson that this was incorrect. Id. at 317 n.l. And we speculated that the State made this error because it misread the Rules ofAppellate Procedure. 

### Id. We adhered to our holdings in Fortun,Pam,and Perry,but distinguished those
cases as addressing unappealed dismissal orders. Olson, in contrast, involved an

11State V. Cruz (Eric Daniel),No.93732-0



### unappealed suppression order—and we considered the suppression order to be wrapped up in the dismissal. Id. at 323. 

### That fact distinguishes Olson from Fortun,Perry,Pam,and this case. Here, 

### even ifwe reversed the suppression order,"the case below would still be at an end." Fortun,94 Wn.2d at 756. 

### III. There Is No Applicable Exception to the Dismissal Rules of Pam, Perry,and Fortun The errors described above make it impossible for this courtto grant effective reliefsince the dismissal order ending the State's case is not properly in front ofus. 

### "[I]fa court can no longer provide effective relief," then the case is basically moot. State V. Hunley, 175 Wn.2d 901, 907, 287 P.3d 584 (2012)(citing State v. Gentry, 125 Wn.2d 570, 616, 888 P.2d 1105 (1995)). The general rule is that moot cases should be dismissed. Sorenson v. City of Bellingham,80 Wn.2d 547,558,496 P.2d 512 (1972). There is an exception: we may retain and decide a moot case "when it can be said that matters of continuing and substantial public interest are involved." Id. at 558. We consider three factors in determining whether a case satisfies this exception: "'"[(1)] the public or private nature ofthe question presented, [(2)] the desirability of an authoritative determination for the future guidance of public officers, and [(3)] the likelihood offuture recurrence ofthe question.'"" In re Det. 12State V. Cruz (Eric Daniel),No.93732-0



### ofM.W., 185 Wn.2d 633, 648-49, 374 P.3d 1123 (2016)(alterations in original) (quoting State v. Hunley, 175 Wn.2d 901,907,287 P.3d 584 (2012)(quoting re Pers. Restraint of

Mattson, 166 Wn.2d 730,736,214 P.3d 141 (2009))). To be sure,constitutional questions are public in nature. State v. Beaver, 184 Wn.2d 321,331,358 P.3d 385 (2015)(citing Hunley, 175 Wn.2d at 907). And this
case presents Fourth Amendment and article I, section 7 issues. But Pam,Perry, and Fortun show that the existence of such constitutional issues alone does not excuse the invited error, failure to assign error (RAP 10.3(a)(4)), failure to brief (RAP 10.3(a)(6)), and potential mootness problems.
We therefore dismiss review. Conclusion We reaffirm the rules ofPam,Perry,and Fortun. Review is dismissed.

13State V, Cruz (Eric Daniel),No.93732-0

WE CONCUR:



### .Cl / A

¥ C

14