State v. Dummer

1

STATE OF WASHINGTON, Respondent, v. ANDRE M. DUMMER, Appellant.

No. 58750-5-II

Court of Appeals of Washington, Division 2

August 20, 2024

UNPUBLISHED OPINION

Che J.

Andre M. Dummer appeals his convictions for unlawful possession of a stolen vehicle, making or possessing motor vehicle theft tools, and obstruction of a law enforcement officer. Dummer with drug paraphernalia in his lap, appeared to be asleep or passed out in a car that returned as possibly stolen. Deputies approached the car with their weapons drawn and ordered Dummer to show his hands. Ultimately, he did not comply and reached towards his seat and the ignition. The deputies grabbed his arms and pulled him from the car while he resisted their efforts. The deputies handcuffed Dummer and searched him for weapons.

On appeal, Dummer argues that the deputies exceeded the scope of a proper Terry^[1] detention when they pulled him out of the car and handcuffed him, and that their detention of Dummer constituted an unlawful warrantless arrest. Dummer further argues that at the point this alleged arrest occurred, the police lacked probable cause and therefore the deputies lacked the authority of law to search his person. Accordingly, Dummer contends that the trial court erred in not suppressing the evidence that was collected during the search of his person and that his convictions should be reversed as a result.

We hold (1) that Dummer was subjected to a Terry detention at the time of the search of his person, not a custodial arrest, (2) that the frisk of Dummer's person did not exceed the lawful scope of a Terry frisk, and (3) that even if Dummer had been subjected to a custodial arrest at the time he was pulled out of the car and handcuffed, the arrest was supported by probable cause for obstructing a law enforcement officer and the ensuing search of Dummer's person was a lawful search incident to arrest. Accordingly we affirm Dummer's convictions. But we remand for the trial court to strike the crime victim penalty assessment (VPA) from his judgment and sentence.

FACTS

I. Background

In September 2022, Pierce County Deputy Sheriff Amandla Gregory was on patrol and observed a car parked on the side of the road in which the driver appeared to be passed out. Deputy Gregory, based in part on the fact that it was around 8:30 a.m. and the sun was out, suspected that the person might be under the influence or impaired. Deputy Gregory ran the license plate and learned the license plate had been cancelled and the registration had expired. Deputy Gregory also learned that the car was possibly stolen. The person behind the wheel was later identified as Dummer. Deputy Gregory called for assistance to reduce the safety risk and reduce the risk of Dummer fleeing because it would have presented a risk to the public.

Deputy Hugh Oake arrived to assist. Deputy Oake observed the car had no front license plate and a piece of paper partially covered the vehicle identification number in the front windshield area. Both deputies observed a lighter and a piece of foil with black burn marks on Dummer's lap.^[2] Deputy Oake was concerned for the public's safety as Dummer may have been in physical control of the vehicle.

Deputy Gregory opened the driver side door and identified himself as a Pierce County Sheriff's deputy. The deputies had their weapons drawn in a low ready position and ordered Dummer to show his hands. Dummer momentarily showed his hands. Then, Dummer started reaching down with his right hand toward the seat, including under the driver's seat and towards the ignition area despite the deputies' commands to stop. The deputies were concerned that Dummer could be reaching for a weapon or for the ignition.

The deputies forcefully pulled Dummer from the car and handcuffed him while he resisted their efforts. Deputy Gregory explained that they placed Dummer in handcuffs because they were investigating a possible stolen vehicle and Dummer was not complying with the deputies' commands. The deputies found a knife on Dummer. The deputies then searched Dummer further for possible weapons, finding a variety of miscellaneous items, including a lanyard with multiple attached keys, a tool that could be used break windows and "punch locks," and a wallet with multiple IDs. 1 Rept. of Proc. (Mar. 21, 2023) at 61. Then, the deputies received confirmation the car was stolen.

II. Procedural History

The State charged Dummer with unlawful possession of a stolen vehicle, obstructing a law enforcement officer, and making or possessing motor vehicle theft tools. Dummer moved to suppress "all evidence and statements obtained as result of an unlawful search and seizure." Clerk's Papers (CP) at 13.

At the CrR 3.6 hearing to suppress evidence, Deputies Gregory and Oake testified consistently with the facts above. The trial court ruled that the deputies conducted a Terry detention of Dummer and that they had lawful grounds to perform the detention.^[3] In its CrR 3.6 order, the court entered unchallenged findings of fact. It also made the following legal conclusions:

d. The deputies did not exceed the scope of a valid Terry detention when they contacted [Dummer] with drawn firearms based on the facts surrounding [Dummer] located in a reported possible stolen vehicle.

e. The deputies did not exceed the scope of a valid Terry detention when they forcibly removed the Defendant from the [car] based on the risk of [Dummer] attempting to drive away in a stolen vehicle or driving away when possibly under the influence of drugs.

f. The deputies had probable cause to arrest [Dummer] for the crime of obstructing a law enforcement officer after [Dummer] did not comply with their continued commands for him to stop reaching with his hand and after [Dummer] physically resisted the deputies' attempts to remove him from the [car].

g. The deputies did not exceed the scope of a valid Terry detention when they handcuffed [Dummer] after he had not complied with their commands and physically struggled with them.

h. The deputies' initial search of [Dummer] that resulted in them finding a knife was a valid Terry weapons search.

CP at 84.

The trial court denied Dummer's motion to suppress. Ultimately, a jury convicted Dummer of the charged crimes. In response to Dummer's concern about his ability to pay legal financial obligations (LFOs), the trial court imposed only the $500 VPA, but did not check the box indicating that Dummer was indigent. Dummer appeals.

ANALYSIS

I. The Deputies' Actions in Pulling Dummer From the Car and Handcuffing him Was a Terry Detention, not a Custodial Arrest

Dummer argues that when the deputies pulled him out of the car and handcuffed him it was an arrest rather than a Terry detention, and that this arrest was unsupported by probable cause. As a result, Dummer argues the search of his person was not justified under any exception to the warrant requirement and the evidence discovered during that search should have been suppressed. We conclude that the deputies initiated a Terry detention, not an arrest, and that the search of Dummer's person did not exceed the lawful scope of a Terry frisk. In the alternative, the officers' acts of seizing the knife and searching Dummer was justified under the search incident to arrest doctrine.

When reviewing suppression decisions, we review the challenged findings for substantial evidence and then whether those findings support the conclusions of law de novo. State v Alexander, 5 Wn.App. 2d 154, 159, 425 P.3d 920 (2018). We treat unchallenged factual findings as verities. Id.

"Under the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution, an officer generally may not seize a person without a warrant." State v. Weyand, 188 Wn.2d 804, 811 399 P.3d 530 (2017). However, there are a number of exceptions to the warrant requirement-including the Terry investigative stop. Id. The State bears the burden to show that the warrantless search or seizure falls into an applicable exception. Id.

Under Terry, if the officer has reasonable suspicion that a person is or is about to engage in criminal activity, the officer may briefly detain the person for questioning without first obtaining a warrant. Id. "An officer may also briefly frisk the person if the officer has reasonable safety concerns to justify the protective frisk." Id.

It is not disputed that the deputies in this case had reasonable suspicions justifying the Terry stop. But the issue is whether the deputies exceed the permissible scope of a limited Terry detention. To that end,

"A lawful Terry stop is limited in scope and duration to fulfilling the investigative purpose of the stop." Similar to the analysis for determining the validity of the stop, the proper scope of a Terry stop depends on "the purpose of the stop, the amount of physical intrusion upon the suspect's liberty, and the length of time the suspect is detained." If the initial investigation dispels the officer's suspicions, the stop must end. But if it confirms or further arouses the officer's suspicions, the officer may lawfully extend the scope and duration of the stop.

Alexander, 5 Wn.App. 2d at 160 (quoting State v. Acrey, 148 Wn.2d 738, 747, 64 P.3d 594 (2003)).

"[U]nder certain circumstances measures such as handcuffing secluding, and drawing guns on the suspect may be appropriate to accomplish a Terry stop." State v. Pines, 17 Wn.App. 2d 483, 491, 487 P.3d 196 (2021). While "[t]here is no bright line standard for determining the degree of invasive force which may convert an investigative stop into an arrest," we analyze the degree of invasive force used against the officers' reasonable fears for their own safety. State v. Belieu, 112 Wn.2d 587, 599, ...