State v. Banks

STATE OF WASHINGTON, Respondent, v. CASHUNDO SCOTT BANKS, aka CASHUNDO S. BANKS DONALD EUGENE IRVING Appellant.

No. 53522-0-II

Court of Appeals of Washington, Division 2

May 18, 2021

UNPUBLISHED OPINION

MAXA P.J.

Cashundo Banks appeals his conviction of first degree unlawful possession of a firearm and unlawful possession of a controlled substance - methamphetamine.

The conviction arose from an incident in which a police officer approached Banks to make sure he was okay because he was asleep in a car parked in a Safeway parking lot with the engine running. After confirming that Banks did not need assistance, the officer asked Banks for his name and identification. The officer then conducted a records check learned that there was an outstanding warrant for Banks's arrest, and discovered that he had possession of a firearm and methamphetamine. Banks filed a motion to suppress the firearm and the methamphetamine on the grounds that he was unlawfully seized when the officer asked him for identification. The trial court denied the motion.

We hold that (1) the trial court did not err when it denied Banks's motion to suppress because the officer's request for identification did not constitute a seizure under the totality of the circumstances, and (2) Banks's unlawful possession of a controlled substance conviction must be vacated under State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021). Accordingly, we affirm Banks's first degree unlawful possession of a firearm conviction, but we reverse his unlawful possession of a controlled substance conviction and remand for the trial court to vacate that conviction and for resentencing.^[1]

FACTS

Officer's Encounter with Banks

On February 7, 2019, officers Hannah Bush and Aaron Lucas responded separately to a grocery store in Tacoma regarding unwanted individuals who were in front of the store. During the contact, a security guard asked Bush to check on a car parked in the store parking lot. The security guard stated that a man - later identified as Banks - was asleep in the car, the engine was running, and the car had been there for several hours.

Bush approached the vehicle by foot. Another officer, Deanna Ramos-Campos, also was present, but the trial court could not determine her location. Banks was in the driver's seat with his eyes closed, apparently asleep. Bush knocked on the driver's side window and identified herself as a police officer. It took a few knocks for Banks to respond, and then he opened his eyes. Bush illuminated her uniform with her flashlight.

Using a normal tone of voice, Bush asked Banks to roll down his window and then motioned for him to roll down the window. Bush did not order or demand that Banks roll down his window. Bush's weapon was not drawn and she did not have her hand on her weapon.

Bush asked Banks if he was okay and said that security had told her that he had been parked in his car for a while. Banks said that he was okay and that he was waiting for someone. Bush also asked, "Hey, can I get your name so I know who I'm talking to?" Report of Proceedings (RP) (May 23 2019) at 14. Banks provided his name. Bush also asked Banks for identification, but he was unable to provide any. She used a normal tone of voice when she asked Banks for his name and did not demand or order him to provide identification. The tone was conversational with no hostility.

Bush used the information that Banks provided to run a records check while Banks remained seated in his car. She did not retain Banks's license or any identifying documents. Bush learned that Banks had an outstanding felony warrant and a suspended driver's license. She then requested backup from Lucas, who approached on foot.

Bush asked Banks to step out of the vehicle. Banks informed Bush and Lucas that he had a firearm in his waistband, which Lucas removed. Banks also asked the officers to retrieve a brown bag from his vehicle. When Lucas transported Banks to jail he searched the bag and discovered a substance that later was identified as methamphetamine.

During the encounter, there were no patrol cars blocking Banks's ability to drive away and none of the patrol vehicles had their emergency lights activated. It is unclear where Ramos-Campos's car was parked, but the trial court found that it likely was not blocking Banks's car.

The State charged Banks with first degree unlawful possession of a firearm and unlawful possession of a controlled substance - methamphetamine.

CrR 3.6 Hearing

Banks filed a motion to suppress evidence of the firearm methamphetamine, and his statements regarding the items, arguing that they all were obtained unlawfully through a warrantless seizure. The trial court denied the motion. The court entered extensive findings stating the facts summarized above. The court concluded that Bush checked on Banks and asked him for identification as part of her community caretaking function. The court further concluded that a seizure did not occur until Banks was asked to get out of the vehicle, and by that time Bush had learned of the outstanding warrant and therefore the seizure was lawful.

Bench Trial and Sentencing

After a bench trial, the trial court found Banks guilty of first degree unlawful possession of a firearm and unlawful possession of a controlled substance. At sentencing, the trial court determined that Banks's offender score for the two convictions was 9, based on the current convictions and several prior convictions, including a conviction for attempted unlawful possession of a controlled substance.

Banks appeals his convictions.

ANALYSIS

A. Warrantless Seizure

Banks argues that Bush unlawfully seized him when she asked for identification, and therefore the trial court erred in denying his CrR 3.6 motion to suppress the evidence discovered after the seizure. We disagree.

1. Standard of Review

When reviewing a denial of a motion to suppress evidence, we determine whether substantial evidence supports the trial court's findings of fact and review de novo the trial court's conclusions of law based on those findings. State v. Tysyachuk, 13 Wn.App. 2d 35, 42, 461 P.3d 403 (2020). Evidence is substantial when it can persuade a fair-minded person of the truth of the stated premise. Id. We treat unchallenged findings of fact as verities on appeal. Id.

2. Legal Principles

Article I, section 7 of the Washington Constitution states, "No person shall be disturbed in his private affairs . . . without authority of law." However, article I, section 7 does not prohibit all interactions between law enforcement officers and private persons. See State v. Harrington, 167 Wn.2d 656, 664-65, 222 P.3d 92 (2009); State v. Johnson, 8 Wn.App. 2d 728, 736, 440 P.3d 1032 (2019). Whether a law enforcement officer's encounter with a person violates article I, section 7 depends on whether a "seizure" has occurred. See Harrington, 167 Wn.2d at 663.

Under article I, section 7, a seizure occurs when" 'considering all the circumstances, an individual's freedom of movement is restrained and the individual would not believe he or she is free to leave or decline a request due to an officer's use of force or display of authority.'" Id. at 663 (quoting State v. Rankin, 151 Wn.2d 689, 695, 92 P.3d 202 (2004)). "The relevant question is whether a reasonable person in the individual's position would feel he or she was being detained." Harrington, 167 Wn.2d at 663. This determination is made by looking at the officer's actions using an objective standard. Id.

The court in Harrington noted a nonexclusive list of actions that likely would result in a seizure:" 'the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.'" Id. at 664 (internal quotation marks omitted) (quoting State v. Young, 135 Wn.2d 498, 512, 957 P.2d 681 (1998))." 'In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.'" Harrington, 167 Wn.2d at 664 (internal quotation marks omitted) (quoting Young, 135 Wn.2d at 512).

The person claiming an unconstitutional seizure bears the burden of proving that a seizure occurred. Harrington, 167 Wn.2d at 664.

3. Challenged Findings of Fact

Banks assigns error to three findings of fact:

2. During this contact, . . . store security came up and asked Officer Bush to check on a vehicle which was parked on the left side of the parking lot, backed in, and not in a legal parking spot. . . . . . . .

9. Officer Bush testified that she requested identifying information so she would know who she was talking to. The driver was still seated in the vehicle at this time. Bush used a normal tone of voice when asking the driver for his name and did not demand or order him to provide identification.

10. The defendant voluntarily provided his name to Bush. During this time, the contact with the driver was completely conversational with no hostility.

Clerk's Papers at 24-26.

Regarding finding of fact 2, Banks argues that the person who requested that Bush check Banks's car was a private security guard, not a store security guard. Banks is correct, but this fact is immaterial to this appeal and therefore is of no legal consequence. State v. Coleman, 6 Wn.App. 2d 507, 510, 516, 431 P.3d 514 (2018).

Regarding finding of fact 9, Banks does not explain why substantial evidence does not support this finding. There is no indication in the record that Bush "demanded" or "ordered" Banks to provide identification. Bush testified that she casually asked for Banks's name in a normal tone...